Global Exchange Report: The Mexican government continues to harass foreign observers

Threats of expulsion, arbitrary interrogations and immigration restrictions

For more details on this story see the report Foreigners of Conscience: The Mexican Government's Campaign Against International Human Rights Observers In Chiapas.

May 16, 1999
By Pascual Beltrán del Rio
Proceso

WASHINGTON, D.C. - Alarmed by the international reaction and judicial rulings contrary to its practice of deporting foreign human rights observers, the Mexican government seems to have suspended this practice, although it continues to resort to the threat of deportation, arbitrary interrogations and irregular immigration restrictions in order to obstruct their work.

The non-governmental organization Global Exchange arrived at these conclusions following research they conducted over nearly a year concerning the treatment that the Mexican authorities have lately given to human rights observers and other foreigners interested in the Chiapan conflict.

"The government has tried to maintain its image as a promoter of human rights despite evidence to the contrary by expelling dozens of international witnesses from Chiapas. Throughout 1998, the Mexican authorities systematically misapplied domestic and international laws in an attempt to politicize and discredit humanitarian and human rights work in Chiapas and other conflictive states."

"Throughout 1998, the Mexican authorities systematically misapplied domestic and international laws in an attempt to politicize and discredit humanitarian and human rights work in Chiapas and other conflictive states."

The authors of the document point to the fact that they were able to document 144 cases of deportations of international human rights observers as well as social workers since December of 1997.

"The number of expulsions should be of serious concern to governments and international institutions that have invested in the country's transition to democracy. Even as Mexico strengthens its ties to other countries through historic political and economic treaties, the Zedillo Administration is expelling dozens of those countries' citizens whose only crime has been to see, hear and speak about the human rights violations committed against indigenous communities by Mexican soldiers, state police and government-sponsored paramilitary groups."

For Global Exchange, the intentions of the authorities are clear: "The harassment of international observers can best be understood within the logic of a wider government counterinsurgency campaign...The strategy has one basic objective: to break the resistance of Zapatista support base communities and, in so doing, to weaken the position of Zapatista negotiators in the dialogue process."

The 57 page report, which will be presented this week, was written based research conducted by Mexican lawyers Adriana Camarena, of Stanford University, and Federico Anaya Gallardo, legal advisor to the Diocese of San Cristóbal de Las Casas.

The organization Global Exchange, which is based in San Francisco, has organized trips to Chiapas for foreigners as part of its Reality Tours program. Apparently bothered by these trips, the Mexican government has refused to grant an observer visa to Ted Lewis, Director of Global Exchange's Mexico Program.

In the wake of Acteal

The report accuses the Mexican government of carrying out a "xenophobia campaign" with the aim of "containing information about the situation in Chiapas and undermining international support for independent social movements in the state." This campaign, they say "has intensified since the December 1997 massacre at Acteal, as part of a wider counterinsurgency strategy to isolate nonconformist indigenous communities."

In the opinion of Global Exchange, the opening world economy has generated international interest in human rights issues. "Greater economic integration has led to greater interdependence, and national issues are now of concern to citizens in countries that are key Mexican economic and political allies."

However, they add that the Mexican government has had an ambivalent response towards the effects of globalization. "Despite a reluctance to address fundamental human rights issues such as those affecting the indigenous communities of Chiapas, Mexico has accepted the scrutiny of international observers and monetary foundations to monitor electoral and economic progress."

The authorities' hostility towards international human rights observers, the report says, "is not due to any political content of their activities, but rather to the fact that the information they provide about human rights violations can have a profound effect on other countries' foreign policies toward Mexico."

Global Exchange maintains that the Mexican government is mistaken in proclaiming that international human rights observation interferes in the political affairs of the country: "Such activities are upheld and legitimized by international conventions and declarations that the Mexican government itself has endorsed, such as the American Convention on Human Rights and the International Convention on Civil and Political Rights.

The report adds that: "The presence of foreign observers has significantly deterred the potential for abuse in the indigenous communities by the Chiapan or Mexican authorities, whether they are military, police, or civilians...leading many human rights organizations to conclude that had there been a permanent observation presence in the community of Acteal, there would not have been a massacre on December 22, 1997."

Global Exchange affirms that the number of international observers expelled from Mexico increased following the massacre. "Coverage of the massacre by [Mexican] NGOs and solidarity organizations...was extensive and encouraged a new wave of scrutiny from concerned citizens and governments around the world. Since then, harassment of foreign members of religious orders, news organizations, and NGOs by immigration officials and Mexican security forces has escalated. Restrictions on entering the country have proliferated."

The observer visa, illegal

The report identifies President Ernesto Zedillo's January 23, 1998 speech in Mérida as marking the beginning of this harassment "campaign." On this occasion the high official said he considered it "unacceptable" that foreigners be involved in the conflict in Chiapas "even though they use humanitarian reasons as an excuse for doing so."

In the opinion of Global Exchange, "the president's comments marked the beginning of a carefully orchestrated campaign aimed at confusing Mexican public opinion about the role of international observers and aid workers in Chiapas."

In this context, the report states, sectors of the Mexican media, principally television, launched attacks against foreign observers.

In May of 1998, the Mexican government announced the creation of a new category of FM3 documentation to be used by "international observers in situ." The measure imposed new requirements for foreigners who wish to visit the country in the capacity of observers.

The restrictions have provoked frustration among international human rights groups, who have said that the procedures imposed by the Mexican authorities have made their work difficult and put their witnesses in danger. Additionally, they have complained that Mexican consulates generally have imprecise information about how to obtain the document and many times obstruct the administrative procedures involved in requesting it.

The Global Exchange report agrees and argues that "in Guatemala, El Salvador, Colombia and other Latin American countries that have experienced or are currently suffering human rights crises, international human rights observation has never been restricted to this degree. Mexico's approach earns it the distinction of having the most restrictive policy on human rights observation in all of the Americas."

However, the report alleges something more: "the new rules have no legal or constitutional authority due to the fact that they were never approved by either the Executive or the Congress... According to Mexican law, new laws and regulation can only be established by the legislative branch of government...because these rules were created by the National Immigration Institute (INM), it is obvious that this is an invasion of the Legislative Power...The Executive's power to regulate statutes approved by the legislatures is restricted by the lettering of each statute."

Given this, the report states, "there are no grounds for creating a new category of non immigrant since existing regulations do not mention any "In Situ Human Rights Observer Visitor" category. The new immigration rules for international observers are therefore unconstitutional and illegal since, among other things, they were implemented via an administrative memo."

Article 33 and the Population Statute

The report maintains that the government "strategy" against observers has fallen into other illegal actions which have begun to be noted by their own Federal Judiciary.

"The government campaign to restrict the activities of international observers now seems to be reaching its legal limits as the CNDH (National Human Rights Commission) and Mexican judiciary have started to formally acknowledge the violations being committed by the INM."

The report focuses on the application of Article 33 of the Constitution to expel foreigners. It states that the deportations of various members of an Italian delegation (44 out of a total of 120), as well as U.S. school teacher Peter Brown and the 12 international observers that were detained during the dismantling of the tzeltal community of Taniperla, were carried out under Article 33. All of these expulsions took place between April and July of 1998. (Other deportations were based on alleged violations of the General Population Statute.)

Global Exchange maintains that "Article 33 of the Constitution is used arbitrarily by the Mexican government as means to impose their desires...the application of Article 33, it appears, is based more on political expediency than an objective application of the law."

According to the report, the Executive is obligated by law to clearly substantiate the reasons that the foreigner is expelled under Article 33.

"The Executive branch must justify its decision based on facts, and explain the just cause for the expulsion... Such an argument must demonstrate that there is no other option but to expel the offending foreigner in order to avoid a national emergency situation...The fact that the Federal Executive has extraordinary powers does mean that it can exercise these powers arbitrarily...a foreigner's Constitutional guarantee to be heard before a court is suspended by Article 33 when the Presidency considers his/her presence to be inconvenient. None of the other fundamental rights of the foreigner may be ignored."

The report also considers that the Mexican government did not legally justify its decision to deport the foreigners in question.

"Mexican government officials claim that foreigners were detained and expelled for engaging in political affairs exclusive to Mexican citizens. So far, they have been unable to substantiate these charges."

The report argues that behind these three cases of deportation there is "an arbitrary and misleading interpretation of what is political activity in Mexico," and points out that "there are no constitutional grounds to stop foreigners from giving their opinions publicly...The Mexican State has no constitutional right to obstruct the exercise of freedom of speech to foreign nationals."

Global Exchange adds that "[t]he federal government, looking to win international approval for its handling of Mexico's democratic transition process, conveniently abandons its abusive interpretation of Article 33 when confident of favorable reports from foreign observers. In regard to its deeply flawed human rights record and its repressive approach to the Chiapas conflict, Article 33 is applied illegally and arbitrarily with the clear intent of frustrating international scrutiny."

The report says that government has also acted in an irregular manner when it has carried out deportations under the General Population Statute without subjecting its decisions to a judge's ruling.

"According to the INM and the Interior Ministry, an expulsion is not a punishment that impinges on the life or personal freedom of the individual. An expulsion therefore remains a legally "administrative penalty" because it is enforced through the application of administrative rules. The Supreme Court has ruled many times against this position regarding the administrative nature of expulsion... Under Article 51 of the Organic Statute of the Judicial Branch of the Federation, the Federal Judiciary has always considered expulsions under the General Population Statute as criminal cases...the INM must defer jurisdiction to the Judiciary."

Forced Changes

According to the report, due to adverse rulings of the Judiciary and the reaction of international organizations "attempts by the Mexican State to preserve the President's exceptional powers to expel foreigners with out conceding the right to a hearing are in vain."

"The fact that growing numbers of foreigners are filing Amparos and demanding the protection of the Inter-American Human Rights system makes it more difficult for the INM to expel human rights workers in Chiapas."

The report recalls that between August of 1998 and March of this year the Judiciary has ruled in favor of expelled foreigners on various occasions. "The rulings seriously undermine the Mexican government's position... and obliges the Executive to demonstrate before the courts exactly how the foreigners had exercised political rights exclusively reserved to Mexican citizens by visiting indigenous communities."

In response to legal attacks made by some deported foreigners, the report continues, the Mexican authorities seem to have changed their strategy. "Short of expulsion, the Zedillo Administration has developed a series of administrative obstructions that hinder the arrival of international witnesses to Mexico."

Amidst these obstacles, the report states, it is with the expedient Departure Order that they prevent observers from extending the length of their stay in the country. Global Exchange considers this practice a disguised expulsion.

"Furthermore, the INM is hoping that the foreigner will have been so intimidated by this procedure that he or she will want to avoid any further confrontation with the authorities and therefore discontinue their original schedule."

"In 1999, thirty one foreigners have been served with departure orders to leave Mexico...the immigration authorities therefore seem to have partially accepted the arguments of unconstitutionality developed by human rights lawyers in the Amparo cases. The government apparently views this as a method of expelling international observers that is less embarassing politically."

Recommendations to Congress

Finally, Global Exchange makes a series of recommendations, among which include the following:

• To national and international human rights organizations and to civil society in general: lobby the Mexican government to clarify the distinction between deportation and expulsion; terms which have been used arbitrarily by the Mexican Government in order to confuse public opinion and restrict the human rights of foreign nationals. Article 33 of the Constitution never uses the term expulsion. It only states that the Presidency has the authority to "make the inconvenient foreigner abandon the country." Legal practice has called this institution an expulsion. In old statutes (1936 and 1947) the term deportation was used to describe the expulsions made under immigration statutes. However, in 1974, the new General Population Statute changed the term deportation into expulsion. Today, Mexican legislation uses both terms as synonyms. The terms Deportation is used only in Article 51 of the Organic Statute of the Federal Judiciary (analyzed in the text) and in several rulings of the Supreme Court in cases brought under the immigration statutes of 1936 and 1947. The Mexican Government prefers to use the term expulsion because it implies an arbitrary action, beyond the legal control of the judiciary. To counter this type of abuse it is necessary to apply pressure on two fronts: 1) the elimination of Article 33's expulsion power; and 2) the limitation of the General Population Statute to use only the term "Deportation." Deportation implies legal proceedings and respect for human rights. By clarifying what is a deportation, other abuses will cease, such as those committed by the INM when applying expulsions to foreigners who had the right to an extradition under bilateral treaties signed by Mexico.

• To the Mexican Congress: eliminate the expulsion power granted to the Presidency by Article 33 of the Constitution, making this article's text congruent with Mexican international obligations on human rights, and amend the General Population Statute to ensure that all foreigners can observe the human rights situation in Mexico and inform on it, with no unlawful nor illegitimate constraint by the Mexican Government; ensuring the respect of the freedoms of transit, association and work; and in compliance with international treaties, in accordance with the universal duty to see that human rights are respected worldwide.

• To the Supreme Court of Justice and the Federal Judiciary Council: ensure that the legal resolution of all cases related to foreign nationals' expulsion from Mexico be impartial , verifying the legal and constitutional ground of the expulsions, and also the compliance of Mexico with its international obligations. In particular, to stop the abuse of the 'Amparo para Efectos' ruling in expulsion cases.