CONSTITUTION OF 1917
1. Article 21 of the Constitution in the Constituent Congress
In September 1916 he called the people at elections of deputies to the Constituent Congress, which are being checked on 22 October under the call of the First Chief of the Constitutionalist Army.
The Congress opened on November 21 to review the records of deputies and to establish definitely the people's representative assembly that would be dedicated to the task of reviewing the draft Constitution sent by Venustiano Carranza.
The inaugural session of the work of the Constitutional Convention was held on 1 December. They Carranza presented to make the opening statement and submit its draft constitution, through a report setting out the grounds that they had found the wording of the main articles.
report immediately after Congress began its work, and began discussions to approve or amend the articles proposed by the Chief.
Our aim was to analyze the reorganization that the Constitution of 1917 makes the Attorney General, and considering they are in Articles 21 and 102 which, for this purpose were issued and remain in force, we turn to analyze and detail the opinions, discussion and approval of these articles was done in the oft Congress.
1.1 The report of Don Venustiano Carranza
In the explanatory memorandum, which presented as a report Venustiano Carranza, referred to draft Article 21 as follows:
"Article 21 of the Constitution of 1857 gave the administrative authority the power to impose and fix up to five hundred dollars fine, or up to one month imprisonment in cases and ways to express determine la ley, reservando a la autoridad judicial la aplicación exclusiva de las penas propiamente tales.
“Este precepto abrió una anchísima puerta de abuso, pues la autoridad administrativa se consideró siempre en posibilidad de imponer sucesivamente a su voluntad, por cualquiera falta imaginaria, un mes de reclusión, mes que no terminaba en mucho tiempo.
“La reforma que sobre este particular se propone, a la vez que confirma a los jueces la facultad exclusiva de imponer penas, sólo concede a la autoridad administrativa castigar la infracción de los reglamentos de policía, que por regla general sólo da lugar a penas pecunarias y no de reclusión, la que únicamente is imposed when the offender can not pay the fine.
"But reform does not stop there, but proposes an innovation that is sure to completely revolutionize the procedural system which has long governed the country, despite all its imperfections and shortcomings.
"The existing laws, at both the federal and common, have adopted the institution of the Public Ministry, but such adoption has been nominal, because the function assigned to the representatives of that is purely decorative to the line and prompt administration of justice.
"Mexican judges, continues Venustiano Carranza, have been run during the period from the consummation of Independence to today, the same as in colonial times they are charged with crimes and seek out evidence to this effect has always considered itself authorized to undertake real assaults against the defendants, to coerce confessions, which undoubtedly distorts the role of the judiciary.
"The whole society recalls horror the attacks on judges who, eager for fame, saw as positive fruition reaching their hands a process that allowed them to deploy a complete system of oppression, in many cases against innocent people, and other against the peace and family honor, no respect in their inquiries, nor the same barriers strictly provided by law.
"The same organization of the Public Prosecutor at the same time avoiding the judicial system so vicious, restoring to judges much dignity and all liability of the judiciary, the Attorney General give full importance it deserves, leaving only the prosecution of crime, looking for evidence that would no longer be made by procedures that interfere and reprobate, and the apprehension of criminals.
"Meanwhile the public prosecutor, judicial police with their repressive provision to remove mayors and the ordinary police, the possibility that until now have had to grasp how many people deemed suspicious, no more merit than his particular approach.
"With the institution of the Public Prosecutor as proposed, individual freedom will be ensured because according to Article 16, no person shall be arrested except by order of the judicial authority, but may not deliver in terms and with requirements that the same article requires
...." 30 In this exhibition, Mr. Carranza clearly define the situation that had prevailed in earlier times at the constituent meeting, talks about the arbitrariness of the administrative and legal capacity that existing laws gave them to commit them and refers to the attacks on judges repeatedly committed against innocent at the same time exercise the functions of persecution against crime, which created the dangerous confession to charges, which distorts the role of the judiciary, is also the institution of Public Prosecutions taken earlier in Mexican law, but with a purely nominal and decorative, without much possibility to fulfill the conditions for which it was created, namely, to intervene on the straight and prompt administration justice.
To remedy such situations, the first chief proposed to precisely delineate the roles of prosecution of crimes and punishment of penalties, both for both the administrative and the judicial. To this end exclusive powers granted to the Public Ministry by providing judicial police. His goal was to eliminate repeated abuse of the administrative authorities and the ordinary police.
Thus, the Constitution of 1917 established in criminal matters a dual role of the Public Ministry as head of the criminal action and as head of the Judicial Police. Although
may be Carranza excessive talk-as-a complete revolution in the procedural system, it definitely was a major advancement in criminal matters the responsibility directly and almost exclusively in the research function to the Ministry Público.31
Article 21, as Carranza proposed, read:
"The imposition of penalties is the exclusive judicial authority. Rests solely with the administrative punishment of violations of police regulations and the prosecution of crimes by prosecutors and judicial police will be available to it.
"The judicial authority sent, according to this view, find and apprehend the criminals. It may be worth, for the apprehension of the administrative authority to the administrative authority whose functions have their orders to the Public Ministry and the Judicial Police. "32
With this project, and the considerations made by Mr. Carranza in his report The committee formed by General Francisco J. Mugica, as president, Alberto Román, Luis G. Monzón, enrique Enrique Recio and Colunga, presented to Congress its opinion in the 27 th. Ordinary session, held on Tuesday afternoon January 2nd, 1917 under the chairmanship of Mr. Luis Manuel Rojas and with the assistance of 124 deputies.
1.2. Commission Opinion
The opinion read to the Assembly, says:
Citizens Members:
The first part of Article 21 of the draft Constitution can be seen as a transcript of the second paragraph of Article 14 case that it is declared that no one can be deprived of life, liberty or property, a trial by court and in accordance with laws issued in advance, including the statement that only the judicial authority may impose penalties . However, Article 21 declaration appears more restrictive and strict and placed as to delineate the respective fields of judicial and administrative authorities. Both of these circumstances and to preserve the historical link, we believe it should retain the first sentence of Article 21.
"In the 1957 Constitution limited the powers of the political or administrative authority to impose a fine up to $ 500.00 and imprisonment for up to thirty days, and the project has removed this limit. It is certainly unnecessary, as regards pecuniary punishment, provided that any excess of the authority in this regard would be contained by imposing ban Article 22, impose excessive fines, but it seems sensible to limit the powers of the authority as regards the imposition of arrest, to the purely essential.
"Violations of the police camps are, in general thesis of such a nature that does not deserve more punishment than a fine, but there are cases where it is forced to arrest the offender at least for some hours. We believe that this should be limited administrative power to arrest, except if the arrest is made indispensable, but even in this case should also set a limit would estimate it to be just a fortnight.
"The institution of the judicial police appears to be a real need, especially when an accused hereafter enjoy the ample guarantees afforded by Article Article 20. It is natural that the police is under the Director of Public Prosecutions. These points have been developed with any extent in the report that the C. Head first presented to this honorable assembly, which will not do anything but wise to refer to that document. But it seems that due to some vagueness in the wording of Article 21, it is not closely related to the reasons to found. Following the text of the article, up to pursue the administrative authority crimes by the Attorney General and the Judicial Police, in our view, strengthened by the preamble to the C. First Chief should be the reverse: he plays the Attorney General prosecute crimes and direct the judicial police, and the exercise of these functions should be helped much by the administrative authority as it subordinate agents.
"Developing our view of the Judicial Police, we believe that whatever way we organize the states in the exercise of its sovereignty, there will be need for local authorities, in addition to its functions, exercise functions Judicial Police, ancillary of the Public Ministry and the fulfillment of these obligations in the exercise of those functions should be subordinate to the Ministry.
"It seems that this is the idea of \u200b\u200bArticle 21, but we believe it should be expressed more clearly, and consequently propose to this August assembly will serve approve that article as follows:
" Article 21 .- The imposition of penalties is the exclusive judicial authority. Rests solely with the administrative authority for the punishment of infractions of police, "" ual only consist of fine or imprisonment up to thirty-six hours, but if the offender not pay the fine that was the purpose, be substituted by the corresponding arrest, not in any event exceed fifteen days.
"The administrative authority shall exercise the judicial police functions that impose the law, being subordinate to the prosecutor in terms solely for the performance of those functions.
"Hall of commissions, Querétaro de Arteaga, December 30, 1916. General Francisco J. Mugica, Alberto Román-LC-Recio Enrique Monzon Enrique Colunga. "33 Interestingly
in the opinion of the attitude of the committee, which retained the first sentence of Article 21 of the project, both to delineate the respective fields of judicial and administrative authorities to preserve the historical link, an issue which necessarily implies a connection with the liberal tradition that accepted the deputies, were radical or moderate.
Speaking of the Attorney General highlighted a discrepancy with the draft presented by Carranza, not on the merits but on the formal, as the commission said there is a vagueness in the wording of the proposed article reaffirms that the statement in report. This situation was put to discussion and then, when we look at the debate, see the outcome.
Finally, with respect to the Judicial Police, it was suggested that regardless of their organization in the states, local authorities exercising functions of the Judicial Police in support of the Public Ministry, as it were subordinated to these roles.
Read the opinion, the date set for discussion at regular meeting: January 5, 1917. Following are excerpts of the most important thing every time:
1.3. Discussion
Deputy Jose Rivera of Puebla, was the first to speak against. In attitude more apparent spokesman for the truth, disputed the article in question by not set a precise limit to the administrative fines be imposed, leaving door open to abuse by the authorities, especially as this provision could be exercised by authorities floor area, which would not have qualms about wielding that weapon terrible , especially against enemies políticos.34
He also referred to the subjectivity of the article that gave rise to various interpretations, to the excessiveness of the fines and the application of them did, because people do not always rested with the same economic capacity.
respect to the imposition of arrest that the commission limited to fifteen days at most, taking rightly considered the shaping of society in different layers, referred again to the recipient's personal situation as punishment, he said, "what would be a severe penalty for a gentleman ... would not be for a man accustomed to the abuse of life ".35 In what Rep. Rivera said that in this case it gave them to the authorities capacity and sufficient criterion to determine the penalty. "So that you feel the hand of justice in the heart of the person who has fallen under the action of the same" .36
intervened immediately after Rep. Felix F. Palavicini, representative Federal District. Asked the chairman of the committee report on the reason for the major change from the Judicial Police, as the project's first chief opens a real novelty and the commission had suprimido.37
For the Commission, General Francisco J. Mugica informed of the reasons that caused the changes to draft article 21. He argued that there was a substantial change, but an adjustment in the wording. Executive's report showed that his desire was to limit the administrative authority for law enforcement and order the same to the Judicial Police in charge of Public Prosecutions. Following this idea, the Commission thought more fair to point out that criminals would be prosecuted only by the judicial authority of the Judicial Police using, it would be under the orders of Attorney General, 38 since the administrative authority would also work under the orders of prosecutors and police as Judicial. Again
deputy spoke to impeach the general Palavicini Múgica that, despite its preamble, the text was not clear the idea. According to the draft Commission special judicial police disappeared as he had conceived Venustiano Carranza, it is completely separated from the authority administrative, but also exercise police functions Múgica Judicial.39Asimismo asked General to report whether the Commission's intention was to eliminate the special judicial police, and to clarify whether his impression was ill founded.
confusion are followed. Members asked for clarification the word and sometimes took it without asking, until the deputies and Narvaez Machorro Paulino and Jose Natividad Macias, representatives of Jalisco and Guanajuato, respectively, were imposed gala having knowledge (mainly the latter, who knew the intention of the draft article, since he had worked in writing). Specified situations competing each of the bodies concerned that Article.
Machorro and Narvaez The deputy noted that the discussion had been misled by a misunderstanding, since Article 21, as had the Commission seemed to indicate that the prosecution relied on the administrative authority, implying that there were two entities: administrative authority and depending on it the Attorney General. Seen this way, it lowered the authority. Incorrect assessment, since even though the prosecution was a legal element of the first order, not part of judiciary but of the authority, so that the words of the First Chief, "by the Attorney General", did nothing to establish the national administrative authority dedicated to exercise those functions. Not that it was dependent on anyone, is that the prosecution was the body of the authority intended to exercise such funciones.40
Macias MP elaborated on the issue explaining how to work the body simply trying to establish the First Chief .
presented a historical account of the situation prevailing in the judiciary since independence from Mexico, noting that there was no separation of powers, judicial authority was only one sector of the Executive. Despite the establishment of popular sovereignty, in fact the authorities had been entirely concentrated in one hand, and although nominally divided, were confused. The judiciary is considered not only empowered to decide on the case subject to their knowledge and to impose punishment, but to prosecute offenders. For that reason we established the Judicial Police, that is, the agents were not judges, but employees at your service to find out the details and look for evidence of crime, depended entirely on the power Judicial.41
"Wine in Mexico after the institution of the Public Ministry, "continued the Congressman Macias, in his speech, but as we have concluded all the institutions of peoples, civilized, as they have agreed and accepted in an entirely arbitrary and absurd, is established the Public Prosecutor could not be ... more than a decorative body, because instead of being what criminal action, which it pursued the offenders charged and brought all the evidence, did nothing but sit back for the judge to take all steps and he was outstanding all these acts. The Criminal Procedure Code currently in force in Mexico Federal, is taking the Code of Procedure of France and it is said: The Judicial Police is comprised of such and such officer, but he made the mistake of making judicial police to the Public Ministry and the Public Ministry is not judicial police so this was the error. It was a completely confusing and impossible amalgam continues: Macías, "there was that the prosecution was the Judicial Police. The judicial police itself, the Judicial Police and police custody, which is something entirely different, is what I want to clarify to avoid confusion. "42 It also noted
Rep. Macias Don Venustiano Carranza had to adopt the scientific Tecnisa as the Constitution is a scientific work as a public divides power into legislative, executive and judicial branches, and as it was to demarcate and make a final deployment of free institutions was a problem as to which branch of the institution belonged to was going to prosecute offenders. Of course, it could not belong to the legislature, because certainly not going to lay down the law, nor could a member of the Judiciary because it would not apply. "So the logical thing, the legal ... is that the Public Prosecutor is merely a body of administrative power, is ie the executive. "43
Citing exitiosa countries where free institutions, mainly the United States, referred to the Executive's ability to charge through the Attorney General's Office, since it represents the President of the republic in criminal matters.
At the state level, the state Attorney-General said, is the representative of the state government, because it corresponds to pursue. Then
Rep. Macias asked and answered the problem of persecution, if the president or the government will prosecute the offender how they will pursue? By what agency?
Given the importance that the statements of Deputy Macias made on this issue, we should fully transcribe the following sequence of his statement, which explains much of the confusion.
"The Judicial Police in free country is divided into two categories: preventive police and the police questioning, called the Judicial Police, which is the technical name that is designated. Police custody is the policeman who is on every corner watching the order, it does not worry about whether to commit a crime or not, his powers are reduced only to take care not to disturb public order or regulations Police across the constituency it belongs, will be duly provided they are in sight. This is what the U.S. called "Policeman" and what we call "gendarme", so that even within the Republic is designated by the name "police" and at night with the " serene, "but they are all preventive police is trying to prevent the commission of a crime, but this is not the Judicial Police. The Judicial Police are the agents that the prosecution has at its disposal to go to find out where the crime was committed, what people could attend, etc. Is something like that between us has been very poorly set up with the name of security police, because this is, the individuals who are not police officers are dressed, in the United States they bring a plate, with which it reveals immediately seek to exercise their functions, before anyone referred to as law enforcement officers (if a body in a public square) ... the prosecutor who is representing the government, ie the administrative authority, noting the fact and sends his agents, who go to the place of events and there find out what time the corpse there, what people could witness the fact, take all information available in order to clarify the inquiry and that inquiry may be: "For this crime was committed by a person who had such and such signs, you get to know the murderer's name and place that is hidden, immediately realizes , and the prosecution presented the indictment to the judge, saying: "this day, at such time, be made a crime of such class and which consists in this, the judicial police so and so, has taken all the key data; come as to accuse Mr. so and so, under protest that it is a certain fact which is attributed, and which is hidden in this part. " Then the judge, in view of this, pound order Judicial Police arrest and receives, makes the arrest and placed the accused at the disposal of the authority, so that, as you see the police patrol is entirely different from the Judicial Police, the Judicial Police to form the subsidiary through which the Attorney General performs his duties, and the Attorney General is the representative of society, the government representative, this is the appropriate role ".44
Rep. Macias concluded his presentation by making a criticism of previous laws extolling the reform of that article: "The reform is to end this amalgam that had laws retaining previous judiciary is entirely independent of administrative power and, on the other hand, decentralizing the judiciary of their duties, to become the inquisitor of all the facts that warrant the application of criminal law ".45
Thus, among cheers, Rep. Macias finished the intervention that we have detailed, which says a great capacity of analysis and historical overview, which shows critically deplorable situation was the delivery of justice in pre-revolutionary Mexico. Also managed to point out the true meaning of the reform intended by the draft article 21 and that, surely, had a large and important participation.
Then Enrique Colunga deputy tried to defend the position of the Commission in a separate line of the same Article 21, which empowered the administrative authority to punish violations of police regulations. He stressed the need to set limits, at least to the imposition of arrests. Also noted that the defect of the draft Venustiano Carranza was to empower the administrative authority to punish breaches of police regulations and to prosecute the crimes through the judicial police, embedded in one another. Therefore, the Commission had decided to a separation which first administrative authority empowered to punish breaches of police regulations and then limited the ability of municipal authorities to order arrests of more than thirty-six hours.
With regard to the functions of the authority as judicial police, the deputy Colunga claimed it was based on the theory developed by Rep. Macias and considered entirely fair: "The Commission agrees in all its parts to this theory, anything else we believe will be difficult to implement the Judicial Police to take such type is the same institution in the UnitedStates, 46 for what was believed Preventive Police desirable act also, in many cases, functions of the Judicial Police, and so the Municipal Police or the Security Police, as well as the usual functions to prevent the crimes or violations of police regulations, could perfectly identify a source of collect data and evidence to assist the Judicial Police, and its functions, reliance on these functions, it is clear that remain subject to the Public Ministry. Colunga deputy insisted on matching the Commission's ideas and the First Chief, and the convenience of the separation noted.
continued an interesting discussion about crime. It Members participated: Federico Ibarra, Jalisco, Antonio de la Barrera, of Puebla, Jose Maria Rodriguez, Coahuila and Elisha L. Lawns, Veracruz.
Deputy Ibarra pointed to a contradiction at the limit of the arrest which established the Commission first noted that it would not exceed thirty-six hours later, in case of not paying the fine, the accused could be arrested for up to fifteen days.
Deputy Jose Maria Rodriguez took the floor to ask to be conferred to the health authority, as in other parts of the world, any power to stop or at least reduce the activity of poisoners public that food is unadulterated fun of the health authority, government and the public, they were punished with ridiculous penalties. Again
Rep. Macias rightly intervened to clarify the situation with regard to crimes. He argued that the article in question meant two entirely different events: one in which the crime was committed and that in which commits the offense called the police.
claimed that the crimes involve acts of violation of criminal law, and therefore its classification and punishment competent judicial authority. As established and approved items, to find such authority belongs si se ha cometido ese hecho, si lo ha cometido la persona acusada, y si esa persona obró con más o menos discernimiento y conocimiento de causa. No sucede lo mismo con los reglamentos de policía, pues aunque –conforme al sistema exacto de los principios- éstos también debieran corresponder a la autoridad judicial, no se hace así para no recargar las labores de la autoridad judicial, por lo que el castigo a esas infracciones queda a cargo de la autoridad administrativa.47
Aludiendo a una mala interpretación del artículo presentado por don Venustiano Carranza, señalaba que el objetivo de ese artículo era precisamente dejar a la autoridad administrativa el castigo de las infracciones que no pueden ser del conocimiento de la autoridad judicial, porque sería para ésta un trabajo abrumador y, además, porque daría motivo a multas o arrestos excesivos.
El general Múgica, al tomar la palabra por la Comisión propuso, con base en las argumentaciones del diputado Macías, aceptar la redacción del artículo 21 en la parte relativa a lo que es el Ministerio Público, Policía Judicial y autoridad administrativa, tal y como aparecía en el proyecto del primer Jefe. En lo referente a la limitación que se imponía a la autoridad administrativa, dijo que su propósito era garantizar la aplicación de la ley para con la gente pobre, que era la que más frecuentemente infringía los bandos policiacos, y on which priming had always administrativa.48 power of authority was therefore appropriate to limit the financial penalty to be imposed indiscriminately and rich and poor, it was convenient, however, the limitation of the corporal punishment as almost never imposed on the rich, who generally have the resources to pay the fines so as not to step on the jail. Thus, in this case was to protect the lower class.
"In this way," Mugica-General argued in this sense that the Commission has set out through me, no problem whatsoever in introducing the article, if this honorable assembly given permission to withdraw. "49
commissioners' decision to withdraw the opinion drew applause from other delegates and some of them took the floor to recommend changes and identify criteria that wished to be included in the amended plan. Deputy Refuge Mercado Hidalgo representative called pecuniary punishment was limited to fifty dollars, and five hundred are excessive for mere breaches of police regulations.
Congressman Heriberto Jara, Veracruz representative, also called for restricting the amount of the fine, considering that in the form set lent itself to injustice and arbitrariness. On the other hand considered "suitable police system Judicial custody for their action more effective and also be more independent, provided that in the areas where this can not be sustained preventive Judicial Police Force for the hardship they were mainly small towns, it is accepted that the police exercised both administrative functions of the Judicial Police that the law states, namely the establishment of the two cases, with the trend that later, when municipalities can meet their needs, they will establish throughout the Republic judicial police custody, as I said before, I think it will give very good results ".50
There were other interventions, such as José Silva Herrero, Michoacan, and Epigmenio A. Martinez, of Puebla, which were abundant only on what has been exposed for what, finally, after the intervention of General Mugica, closed the debate and withdrew the item to be submitted at a later date.
1.4 The New Project and discussion
During the regular session held on January 12 was read the new Article 21 amended opinion and a dissenting opinion by Mr Enrique Colunga. According to their importance to our study, we will summarize and / or transcribed.
The Commission merely to present the project of Don Venustiano Carranza reformed, ie, the original text con la adición relativa a la limitación de la autoridad administrativa para imponer castigos por infracción a los reglamentos de policía, conforme fuera aprobada por la asamblea.
El texto del artículo reformado es el siguiente:
“La imposición de las penas es propia y exclusiva de la autoridad judicial. Incumbe a la autoridad administrativa el castigo de las infracciones a los reglamentos de policía, el cual únicamente consistirá en multa o arresto hasta por treinta y seis horas; pero si el infractor no pagare la multa que se le hubiere impuesto, se permutará ésta por el arresto correspondiente, que no excederá en ningún caso de quince días. También incumbe own authority to the prosecution of crimes by the Attorney General and the Judicial Police will be made available to it. Board of Commissions, Querétaro de Arteaga, January 10, 1917. "
" Francisco J. Firman Mugica, Alberto Román, Luis G. Monsoon and Enrique Recio. "Motivated
the dissenting opinion of Member Colunga the idea that there was no correlation between what is stated in the Venustiano Carranza report and draft Article 21 of the same and, therefore, the Commission draft finally assumed full text of the First Chief in the first part, did not imply the desired reform the litigation system criminal. Disagreeing about the majority of the commissioners, presented his dissenting opinion.
In its preamble the deputy Colunga spoke first to the report of 1 December 1916, which proposed to revolutionize the procedural system restore their dignity to the judges and the Public Prosecutor through the implementation of the Judicial Police under his command in charge of prosecuting crimes, and with it took off to the mayors and the police shared the possibility of abuse. Just up and the prosecution would be assured of individual freedom, since Article 16 specifies the conditions without which one may be detained. These ideas could be summed up by stating that the prosecution of crimes would be in charge of public prosecutors and judicial police, leaving it under the immediate command and authority
aquél.51
"If you compare these ideas with the original text of Article 21 The inconsistency is clearly seen, "says Colunga-MP, because it provides that the administrative authority should punish police misconduct and prosecution of crimes by the Attorney General and the Judicial Police. If the police misconduct are the only municipal level, the administrative authority to which it refers is the municipal and the same authority responsible for prosecution of crimes, which do not agree with what was stated in the preamble, and with good organization of the Judicial Police. This "continues the deputy, must exist as a branch of the authority, which should have some independence, and all authorities of the regular police but should not be used as auxiliaries of the Judicial Police." 52
However, in the project set out opposite: the municipal authority would be responsible for the prosecution of crimes relying on the Attorney General and the Judicial Police. Moreover, not only police regulations warrant punishment to be violated, and also the violation of government regulations should be punished by the administrative authority. The text of the article proposed by Rep. Colunga is:
"Article 21 .- The imposition of penalties is the exclusive judicial authority. The prosecution of crime rests with the Attorney General and the Judicial Police, which is under the immediate command and authority of that court. Compete to the administrative authority for the punishment of violations of governmental and police regulations, which only consist of fine or imprisonment up to thirty-six hours, but if the offender fails to pay the fine that was the purpose, be substituted by the corresponding arrest in any case not exceed fifteen Messiah. "53
The planned reform of the Commission and the dissenting opinion of Member Colunga was put to discussion. Then refer to the main ideas of the debate:
Mr Jose Alvarez, Michoacán deputy, spoke out against the opinion of the Commission. Argued that its approval would seriously bad for the needy class of the authority granted to administrative authorities to impose fines without limitation which, he believed, could be abused. To avoid this, he proposed the following addition to Article 21:
"The fine imposed by the administrative authority to the workers or laborers, shall not in any case more than half the minimum wage for fifteen days." 54
The proposition of Deputy Alvarez was taken into account by the Assembly . The deputy from Sinaloa, Andres Magallon, simply suggested that instead of "employees" will be used to "working classes."
After a five-minute break requested by the Commission to deliberate, the deputy spoke Macias whose previous interventions had marked the line to be followed by the Assembly. Felt that the Commission draft was less suitable than that proposed by Rep. Colunga, with whom he disagreed, but consistent with the proposed wording. The perceived error in that particular vote was to consider administrative authority only to the municipal president, was being extended to all executive department, or all the authorities that are neither the legislative branch or the judiciary. Rep. Macias said as proposed by Rep. Colunga was more accurate, objective corresponded better looking than the Commission, which was amply understandable given that the commissioners were, for the most part, lawyers. Deputy Macias suggested is reiterated the Commission's formula and accept the dissenting opinion, to coincide with the objective of the First Chief: subtract from the prosecution and judicial investigation of crimes, to be left solely in the hands of the Public Ministry, which is the agency competent. To that end, prosecutors would have the direct and effective assistance of the Judicial Police and with the help of the ordinary police accidental, since it is possible that in many places the ordinary police then the police often Judicial.55
Finally, Rep. Macias requested adoption of the formula of an individual opinion, to make it more consistent with the institutional goal prosecutors. Such approval was without prejudice to effect the proposed amendments couple Rep. Alvarez, so that fines are always on purpose, rather than a means of oppression of trabajadores.56
Múgica
General clarified that the Commission was limited to respect the decision taken by the Assembly to keep in the article regarding the functions of the Public Ministry, the writing of Don Venustiano Carranza, being more clear.
The Commission presented the final draft of Article 21, which was adopted by 158 votes in favor and three against, corresponding to Members Antonio Aguilar, Garza Zambrano Rodríguez González.
approved the wording of the article is as follows:
"The imposition of penalties is the exclusive judicial authority. The prosecution of crime rests with the Attorney General and the Judicial Police, which is under the immediate command and authority of that court. Compete to the administrative authority for the punishment of violations of government regulations and police, which only consist of fine or imprisonment for thirty-six hours, but if the offender fails to pay the fine have been imposed, be substituted by corresponding period of detention which shall in no For fifteen days.
"If the offender is a day laborer or worker shall not be liable to a fine exceeding the amount of wages paid in a week." 57
As we can to continue the debate on the wording of Article 21 of the Constitution which means a step in the current configuration of the Attorney General, were dumped during development concepts that are diverse, including formal and substantive debates, tried to give life to the reforms in criminal matters aimed Venustiano Carranza.
As noted earlier, it was not itself a complete revolution in the judicial system, but of an advance in criminal matters to the commission investigating the role of persecution and the Public Ministry, assisted by the Judicial Police, which gave that body a purely national physiognomy.
Based on this article, the prosecution took its definitive characteristics as head of the prosecution, but not as an administrative body which ensures that the law is strictly enforced. "It is, as J says: V: Castro requesting state agency in the process of defining criminal relationship." 58 Its role as custodian of the principles of constitutionality and legality, outstanding task of the Federal Public Ministry, comes from other provisions of the Constitution and laws derived from it, as discussed below.
Another important power granted to the Attorney General is to be the holder of the Judicial Police, through which the first brings together the elements necessary for prosecutions. Precisely the function of providing evidence to the judicial authority in the process, is a vital function of Public Prosecutions and shown as a true public prosecutor under Article señalado.59
These ideas and others who so vigorously discussed and adopted constituents, marked the beginning of a new era in the administration of justice in Mexico, leaving back causes unbearable abuse and arbitrary acts committed by the judicial authorities, principally against the dispossessed. Special mention
interventions Deputy Jose Natividad Macias, who could defend the idea of \u200b\u200bthe First Chief (which, surely, was the generator). Their interpretations on the Commission's opinions were like real chairs and procedural criminal law. To this extent clarified the situation with the other deputies arrived at his opinion in itself constitute a guarantee of certainty that deserved support. In fact, he learned to channel the discretion of the constituents to the feel of the report by Don Venustiano Carranza.
also deserves special mention Congressman Enrique Colunga, who should be the final version of the article regarding the roles of prosecutors. The deputy was able to interpret the ideas of the report, Realizing the mistake that had drafted, which led to their disagreement with the rest of the Commission. He finally managed to translate the text, the true objectives of the project.
2. Article 102 of the Constitution in the Constituent Congress
Another item that we are interested in the effect was submitted for its opinion on 17 January, at the 47th ordinary session, which is part of the article concerned the formation of the High Court and the Federal District Courts and the Judiciary, which are subsections IV and V of Section VI of Article 73, XXV and XXVI fractions thereof, Section II of Article 79 and 94, 95, 96, 97, 98, 99, 100, 101 and 102.
"Article 102 .- The law shall organize the Federal Public Ministry, whose officials are appointed and removed freely by the Executive, shall be chaired by an Attorney General, who shall have the same qualifications required to be judge of the Supreme Court.
"be conducted by the Federal Public Ministry persecution the courts of all crimes under federal law and, therefore, to him shall apply for arrest warrants against the accused, and present the evidence as to their responsibility, ensuring that trials are conducted with regularity for the administration of justice promptly and expeditiously, request the imposition of penalties and intervene in all matters that the law determines.
"The Attorney General's Office personally intervene in all matters in which the Federation is a party, and where ministers, diplomats and consuls general and those which may arise between two or more States of the Union between a State and the Federation or between the powers of a state. In other cases need to intervene in the Federal Public Ministry, the Attorney General may intervene on its own or through any of its agents.
"The Attorney General of the Republic is the legal adviser of the Government, and he and his agents are strictly subject to the provisions of the law, being responsible for any failure or omission or violation incurred by reason of their functions.
"Hall of commissions-Queretaro de Arteaga, January 17, 1917. Paulino Machorro Narváez, Heriberto Jara. Arturo Mendez, Hilario Medina. "60
At the 54th ordinary session held on January 21 were approved unanimously without further discussion hundred and fifty votes the articles relating to the Judiciary of the Federation, including the aforementioned Article 102.
Juan Jose Gonzalez Bustamante aptly summarizes the main characters of the Attorney General introduced by the 1917 Constitution:
"As a result of constitutional reform introduced by Articles 21 and 102 of the Constitution of the Republic of 1917, the institution Public Ministry was organized as follows: a) the monopoly criminal action solely for the State, and the only state body to be entrusted with the exercise of the Attorney General; b) in accordance with the Federal Agreement, the member states of the Republic must comply with the constitutional provisions establishing the institutions in their Institution of Public Prosecutions; c) the Attorney General, as head of the prosecution, has the functions of action and demand, pursue and court accusing the perpetrators of a crime, the criminal judge can not act ex officio , needs to be requested by the Attorney General; d) the Judicial Police is responsible for investigating crimes, the search testing and the discovery of the perpetrators, must be under control and supervision of public prosecutors and police is understood that such a function, e) penal judges lose their status as judicial police are not empowered to search for evidence of initiative own and play only in criminal decision-making roles; f) Individuals can not take place directly before the Court as complainants or complainants, they will face the prosecution for it, by satisfying the legal requirements, to promote the corresponding criminal action, g ) in federal matters, the Attorney General is the legal adviser of the executive, promoter criminal action to be enforceable in the courts, and the head of the Judicial Police in the investigation of crime; h) the Attorney General intervenes in matters where the State is interested, and in cases of minors and disabilities. "61
3. Constitutional Article 107
It should be mentioned here as to the institution of Public Prosecutions arising out of the 1917 Constitution, Article 107 of this ordinance. This article establishes the general rules governing the writ of amparo. In section VIII of that article was included, since the draft presented by Venustiano Carranza a reference to the Public Ministry that had not appeared in previous constitutional provisions.
In the aforementioned section VIII of the project, which was adopted in its terms within the final text of Article 107 states:
"When the protection is sought against a final decision, be brought directly before the Supreme Court, presenting the letter with a copy of which is discussed in the previous rule, or sending it through the authority or the state district judge to which it belongs. The Court shall sentence without further proceedings or diligence that the letter in which proceedings are brought, which produces the other party and the attorney general or the agent that effect may designate, and not understanding another legal issue that the complaint contains, "
This reference to the Attorney General introduced in Article 107 was not up for discussion in the debate about the constitutional and had focused mainly on the procedurability amparo against final judgments in civil and criminal trials.
The message that the Constituent Venustiano Carranza presented no explicit reference to the novelty introduced in Article 107. However, it is easy to deduce its origin as there was, as Juventino Castro says a "tradition dating back to the first law regulating the protection", 62 under which the prosecution was entitled to intervene in the amparo.
The first law regulating the matter in November 1861, stated that the District Judge that the authority resided, after filing the petition for relief, the district attorney was heard to declare whether or not to open the trial guarantees. These references to the district attorney is a direct antecedent of the statement that the Public Ministry in the shelter, as a party to preserve the enforcement of the Constitution, without getting involved in the particular interests that are heard on the merits.
Procedures Code of Federal of 1897 also gave the Attorney General participation in the injunction suit, as the Federal Code of Civil Procedure, 1909.
Thus the 1917 Constitution in Article 107 collect and incorporate this tradition of Mexican law by pointing to the involvement of the Attorney General or an agent appointed for the purpose, to intervene, as the constitutional text, in sought injunctions against a final decision.
Public Ministry's intervention on under developed, under the rule of the 1917 Constitution by the various laws and regulations of the matter, but took on a broader level Supreme Standard reforms were introduced in 1950. In the preamble to these reforms is alluded to this point as follows:
"The federal prosecutor, through the Attorney General of the Republic or its designated agent, has always been part of all amparo, which has given opportunity to present their key considerations as a regulator of the trial. However, that rule should be modified in the sense that both the Attorney General of the Republic as the designated agent to refrain from intervening in such cases, when the case concerned, lacks in its opinion, the public interest. Under discussion in many acts on civilians in that deal of private property interests, which are generally characterized by secondary laws alleged violations, but not directly to the Constitution, have no interest to the public prosecutor, who must devote their attention fundamentally essential to constitutional problems. "63
As can be seen, while intended to include Article 107 constitutional principle already applied at the legislative level that the Public Ministry is party to all amparo was identified as possibility that the social representative refrain from intervening when it considered the matter deal did not involve issues of public interest that they understood basically linked to the control of constitutionality.
The fraction collected these new elements of Article 107 was the fifteenth, adopted as follows: "The Attorney General's Office or the Federal prosecutor appointed for the purpose, will participate in all amparo; but may refrain from intervening in such cases, when the case concerned lacks, in his view, public interest, "
This article was published in the Official Journal of the Federation on February 19, 1951.
Ministry Involvement Public in the injunction has been considered by various authors as the most important of its functions as the means of it can exert effective enforcement of the Constitution and laws. Luis Cabrera
already in 1932 stated: "The role of the Attorney General in the defense is, as I said before, the highest and most momentous of the assigned law, because it means the intervention of that body to monitor that courts would apply the Constitution. " The lawyer argued that the role was incompatible with the agency that the prosecution is from the Executive. This view was challenged by Emilio Portes Gil in the famous controversy about the two lawyers argued .*
Portes Gil, then Attorney General of the Republic, Cabrera rejected the idea because he considered inadmissible the argument that the government always attributed to a greater or lesser degree, the failure legal precepts in his administration, and held-to refer to the attitude of the Public Prosecutor amparo, which "The prosecution has and must have only standard compliance with the law, because, as stated in Circular of general guidance, the responsibility not only when the officer says he knows that only the law is the rule of action, to be subordinated to legal mandates by the role of social representative, outside any influence from individuals or authorities. "
The current trend is aimed at emphasizing the participation of the Public Prosecutor amparo. Section IV of Article 5 of the Amparo Act, amended in 1983 no longer refers to the abstention of the social representatives amparo when he considers the lack of public interest case. Although no intervention is possible according to the Constitution, the spirit that the law reflects is that it is not desirable.
The circular 1 / 84 issued by the Attorney General's Office and published in the Official Journal of the Federation on April 24, 1984 the emphasis in this area as follows: "It is appropriate to emphasize, once again, the true sign that in our rule of law characterizes the Attorney General Republic, the holder and the Federal Public Ministry, by mandate of Article 102 of the Constitution of the United Mexican States, regulated by the Organic Law in force since March 11, 1984, and by provision of Article XV fraction 107 of the Constitution.
"The highest function in charge of this institution and the officials concerned, their constitutional and statutory mission priority lies in the active surveillance, resolute and unwavering adherence to the principles of constitutionality and legality, allocation defined in Articles 2 and 3 of the Organic Act, and that it should be, to confer the importance it deserves, the other that this system contains.
"This activity is manifested specifically and foremost, through the presence and actions of the Federal Public Ministry in the amparo, as it represents an interest of legality, which characterizes the Public Ministry as authentic social representative under the rule of law.
"We must return to the institution as a laborious effort, the exercise of their mandates high on defense, an activity that requires and deserves the greatest attention from the Federal Public Ministry. The intervention of the Federal Public Ministry in the defense, the supreme means of preserving the rule of law, by way of reviewing acts of authority, must be guaranteed for individuals and society and testimony of sovereignty recognized by the State law Mexican. "
In order to organize the intervention of the Federal Public Ministry in this regard, the holder of the Office issued decision number 3 / 84 published on the same date of the circular referred to above at which point fourth orders "to address the inherent functions as part of the Federal Public Ministry has amparo, the agents assigned motions not only formulated ... but will interpose other interventions and, where appropriate, the resources the law says ... "
4. Constitutional reference to the Public Ministry in the Federal District
In establishing the Constitution of 17 bases of which should follow the Congress to legislate in the Federal District, was introduced in the fifth of which is a specific reference to the Public Ministry District and Federal Territories.
The opinion prepared by the commission in this regard noted that there was no difficulty in admitting the system proposed in the draft Venustiano Carranza by virtue of which have an Attorney General for the District and Federal Territories. Article five, section VI of Article 73 of the Constitution originally said:
"5 ª. The Public Prosecution in the Federal District and the territories, will be headed by an attorney general, who reside in Mexico City, and the number of agents prescribed by law, depending on the officer directly to the President of the Republic, which what appoint and remove freely. "
Figure based on this constitutional provision has been with the only difference being that their role is carried out exclusively in the Federal District and territories do not exist.
5. Organization Act of 1919 Federal Public Ministry
As a result of the provisions of the Constitution of 1917, there was the Law on Organization of the Federal Public Ministry and regulation of its functions, published in the Official Gazette on August 14, 1919.
This law prevented that, when a prosecutor files no charge for the events that an individual has denounced as crimes, the plaintiff was entitled to go directly to the Attorney General's Office, who decided definitively whether or not the prosecution presented. Against that decision did not come from other resources to the protection and responsibility.
Regarding the organization of the Public Ministry, the law retained a structure very similar to the 1908 act, however, was added in this chapter the procedure by which it would supply the permanent or temporary incapacity incurred by the Public Ministry staff. Together
was decided that before taking office, the Public Ministry officials submit the oath of office.
of the powers and duties of the Attorney General of the Republic confirmed the provisions of the Organic Act of 1908, compared to his rank of chief prosecutors.
In Article 17 of the Organic Law on federal, established that the Attorney General of the Republic was in the government's legal adviser, but without specifying what issues or areas.
One of the most important and transcendental functions to be allocated to the institution of the Public Ministry, and therefore the Attorney General's Office, was to intervene as a party to all suits for protection.
It should be noted that clearly identified the causes of apology from the prosecutor and the prosecutors, with the outstanding items: I) The blood relationship with any of the parties or their counsel in the direct line ii) the interest; III) Being a member, debtor or guarantor of any party; IV) have been guardian or custodian of any of the stakeholders. As stated prior law, the classification of the excuses for public prosecutors conducted it the Attorney, when he was considered unable to learn the business, its resolution was for the President.
can say that Organic Act of 1919 Federal Public Ministry, which was issued pursuant to the guidelines given by the 1917 Constitution allowed the Public Prosecutor longer be contained "decorative" to become an essential part in the process
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