Are the salaries of the Mexican public functionaries an act of corruption?

 En derechos humanos, Estado

It is written in the book of peace and love: be the change you want to see in the world. 

Therefore, since those who speak Maayat’aanNāhuatlahtōlli, etcetera, are, to the day, forced to defend their interests before supranational courts, like, for instance, the International Court of Justice, either in English or in Français, and since there is no constitutional link with Español, we pass, pro bono; especially since we believe the Mexican judiciary, for these reasons, ought to be, at least, English-Español plurilingual; for those causes, notwithstanding that for practical and urgent needs, the hypothetical amparos will be presented in Español; on that grounds, we write the present letters in English.

It is not a secret that countries throughout the world have different systems; some are monarchies, some republics, some federations, and so forth; some have written Constitutions and some factual leaderships; some have presidents, chancellors, queens, kings, etcetera.

The case of the United Mexican States has its particularities as well. To start, is not called the Republic of Mexico, or the Federation of Mexico, or whatsoever. Therefore, in its core, is a union of states.

According to article 39 of the Political Constitution of the United Mexican States, the national sovereignty resides in the people, all public power emanates from the people and is for the benefit of the people, and the people has a persistent right to alter or change the form of government.

According to article 40 of the Constitution of Mexico, the people decide to be constituted in a representative republic, democratic, laic, federal, composed by free and sovereign states in its interior regime, but united in a federation established in accordance with the principles of the Constitution.

According to article 41 of the Mexican Constitution, the people exercise their sovereignty through the powers of the union and those of the states. Being the legislative and executive powers, elected.

According to article 49 of the Constitution of Mexico, the supreme power of the federation, is divided for its exercise, in legislative, executive and judicial, not being possible to unite two or more powers in one person or corporation, neither the legislative be comprised in one person, unless, primarily, when there is a war, or an invasion, or something similar, and after, and only after, the legislative permits it; then, and only then, in accordance with article 29 of the Mexican Magna Carta, the executive power can legislate. That is not the case. Being this, as will be seen, relevant for our study.

According to article 135 of the Mexican Constitution, to reform or expand the Political Constitution of the United Mexican States, two thirds of the legislative power needs to approve it, as well as the majority of the legislatures of the states. This is known as the “permanent constituent”.

According to article 80 of the Constitution of Mexico, the supreme executive power of the union is deposited in one individual, called President of the United Mexican States.

According to fraction II of article 127 of the Mexican Constitution, the public servants of the federation cannot earn more than the President of the United Mexican States.

This fraction and article have been used to arbitrarily reduce to less of what the President of the United Mexican States earns, the remunerations of all of the persons that form part of the supreme power of the federation, through which, the people, in its union, exercise their sovereignty.

So, to start, this interpretation corresponds to a not-constitutional hypothesis, and if it is materially imposed, it will correspond to a dictatorial-meta-constitutional hypothesis, since it will have as its first premiss, that the people exercise their sovereignty through the executive power, and not through the powers of the union. And it will also imply that not being in the conjuncture defined in article 29 of the Mexican Magna Carta, the President of the United Mexican States, being the budget a legislation, will be, as if the sovereignty resided in that individual, indeed, factually and conceptually, legislating over the other powers of the union. In other words, there can be a legislation with a budget, but that budget cannot base the remunerations of the other two powers in the remuneration of an individual, that, in accordance to article 80 of the Constitution of Mexico, solely is the depositary of one power of the union, id est, the executive. 

That notion, even we will expand its study, can easily be deduced from article 128 of the Mexican Constitution, which states that all public functionaries, with no exception, before occupying their positions, must solemnly swear to act in accordance with the Constitution and the law. 

This clearly includes, at least, in accordance with article 97 of the Constitution of Mexico, all the Supreme Court justices (ministers), the federal circuit magistrates and the district judges, who, some before the legislative and some before the Supreme Court and the judicature, solemnly swear to act in accordance with the Constitution and the law; and also includes, according to article 87 of the Constitution, the President of the United Mexican States; as well as the senators and representatives, etcetera.

There might be certain confusion if we attend article 108 of the Mexican Constitution that refer to all as public servants, but that is expressly just for the purposes of that title, id est, the fourth title of the Constitution; otherwise, neither the Supreme Court justices, nor the federal circuit magistrates, nor the district judges, nor the popular representatives, nor the President of the United Mexican States, nor the rest of persons that solemnly swear to act in accordance with the Constitution and the law, will be public functionaries, since all will be public servants.

This obtuse and arbitrary interpretation is not just against articles 39, 40, 41, 49, 94, 95, 96, 97, 98, 99, 100 and 101 of the Constitution of Mexico, but against articles 1, 3, fraction II, subsection a) (that considers the democracy not just as a juridical structure and a political regime, but as a system of life founded in the constant economic, social and cultural improvement of the people, who, as has been said, exercise their sovereignty through the powers of the union), 5, 14, 16, 17, 25 (that considers the competitiveness as those conditions necessary to generate economic development and investments and to promote the development of the work force) and 29 of the Mexican Magna Carta.

That interpretation is particularly violative of article 1 of the Mexican Magna Carta, since is clear that if in article 127 of the Constitution of Mexico there are public servants of the federation that cannot earn more than the President of the United Mexican States, and in the immediate posterior article 128 of the same Constitution, there are public functionaries that solemnly swear to act in accordance with the Constitution and the law, then, if article 1 of the Magna Carta mandates the most ample protection for the persons shall be the rule for its and the human rights interpretation; thence, is logic that the public functionaries that solemnly swear to act in accordance with the Constitution and the law, cannot be the public servants of the federation compelled to earn less than the President of the United Mexican States without interpreting the Constitution through the prism of the less ample protection for their constitutional guarantees and human rights. 

In the case of the judiciary this is particularly clear if we attend article 101 of the Mexican Constitution, since none of its members can accept an employment or commission in the federation.

It is also important to mention that the President of the United Mexican States is not recognized as head of state, but as the supreme executive power of the union depositary, especially since the sovereignty resides in the people, and the people exercise their sovereignty through the powers of the union, not being the executive, but the legislative, the first mentioned power. This is particularly relevant, because the President of the United Mexican States, according to articles 96 and 97 of the Constitution of Mexico, does not appoint the Supreme Court justices or any of the rest of the judiciary members; and even if there is no consensus, it needs to first pass through the legislative. 

So if the President of the United Mexican States does not appoint the members of the judicial power, especially since they are extremely qualified professionals, is logic that that individual cannot constitutionally settle their perceptions, and less can do it materially and arbitrarily, as has been, at least, publicized; elseways, following this logic, as happens with, for example, the President of the United States of America, who decided to be paid one American dollar a year, that amounts approximately twenty pesos (less than the minimum wage for one day of work in the United Mexican States); guided by these syllogistic reasonings, all the public servants and public functionaries will be paid less than twenty pesos a year. 

Maybe, as happened with the President of the United Mexican States, who gave back part of his salary, or with the President of the United States of America, who decided to earn one American dollar a year; maybe they do not need it, and do the job just for patriotism; but, in the case of the President of the United Mexican States, his personal choice, without violating article 5 of the Mexican Magna Carta that prohibits the people to be forced to work without a fair retribution; in his case, his will cannot impact the rest of the members of the state, and less it can impact public functionaries that solemnly swear to act in accordance with the Constitution and the law, especially if they form part of a different power of the union through which the people exercise their sovereignty, id est, the President of the United Mexican States is the supreme executive power of the union depositary, not the depositary of also the legislative and the judicial; what is, by decision of the people, in regards to the judicial, per article 49 of the Mexican Constitution, absolutely forbidden; and we are not at all facing the scenario contained in article 29 of the Mexican Magna Carta, where the constitutional guarantees and rights can be suspended, and where, even in regard to the decrees that the executive can issue; those decrees, in its constitutionality and validity, still need to be revised by the Supreme Court, which in addition implies that, for the reason of exercising the sovereignty that resides in and shall benefit the people; for that purpose, the judicature cannot be subordinated to the supreme executive power of the union, that is deposited in one individual; and depending their remunerations in the remunerations of such person, notably will signify they are subordinated to that individual, specifically since them, the Supreme Court justices, as established in article 97 of the Political Constitution of the United Mexican States, are public functionaries that solemnly swear to act in accordance with the Constitution and the law.    

In case that the yearn for arbitrarily reducing all the public servants and public functionaries salaries to be a constitutional reality or constitutionally valid, previous the process signalized in article 135 of the Constitution of Mexico, articles 39, 40 and 41 of it must be reformed, so the sovereignty can reside and be exercised through the President of the United Mexican States, henceforward that individual’s will can be not regulated at all; otherwise, article 108 of the Mexican Constitution shall be reformed to mandate that “for all purposes” all the members of the state are public servants, and not just, as it commands, for the purposes of that title (Title Four) of the Constitution; specially since the legislative, executive and judicial powers are defined in Title Three, and the fraction II of the article 127 of the Constitution, which is the base for this fallacy, is included in Title Seven. 

Furthermore, if article 128 of the Constitution of Mexico, that is also included in Title Seven, clearly differentiates the public functionaries that solemnly swear to act in accordance with the Constitution and the law, whom, for that reason, may be public servants, but only for the purposes of Title Four, not for the purposes of Title Seven (where article 127 of the Mexican Constitution dwells, and which as well is the fundament for the so-called Federal Law of Remunerations of the Public Servants, Regulatory of Articles 75 [(Title Three)] and 127 [(Title Seven)] of the Political Constitution of the United Mexican States); all this, unless articles 39, 40, 41 and 49 of the Constitution of Mexico, that establish the sovereignty and the division of the powers of the union, are violated; and especially, if contrary to what article 1 of the Mexican Magna Carta disposes, the Constitution is arbitrarily interpreted with the less ample protection for the persons. 

This is particularly relevant, since in civilized states, a minimum ethic, not a maximum heroic, is required from those who have a public duty; but more relevant it is, since in civilized countries, acts repugnant to the Constitution, as unfortunately could end up being the case of any law whatsoever that is based on the so-named “transitory dispositions” of article 127 of the Mexican Constitution; is significant altogether, since in Mexico acts repugnant to the Constitution ought not be the rule of the land.  

In words of the iconic Chief Justice John Marshall, who established many bases for the United States of America judicial system, and is, surely, a universal judicial figure: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act”.

Hence, if the Constitution, like may happen with other acts, is to be altered when the legislature shall please to alter it, as will be the case if the salary of public functionaries of other powers of the union, who solemnly swear to act in accordance with the Constitution and the law; if those salaries are based in the salary of other power of the union, id est, the executive; facing that hypothesis, the written Political Constitution of the United Mexican States, at least in its articles 1, 3, 5, 39, 40, 41, 49, 97 and 128, will be an absurd attempt on the part of the people, where the sovereignty resides, to limit a power in its own nature illimitable.

This, for the same causes, as has been said, is applicable to the so-named “transitory dispositions”, since those dispositions part from the false premise that all public functionaries that solemnly swear to act in accordance with the Constitution and the law, are, even article 128 of the Constitution of Mexico indeed and expressly differentiate them, public servants; and a transitory disposition cannot be contrary to the Constitution itself. It can be a defect in the legislative technique, due to the same fallacy, but they have no independent validity, hence cannot be against an express constitutional article, as is the alluded article 128 of the Political Constitution of the United Mexican States, that states a general provision, opposed to the transitory disposition, that is restrictive to the point of being clearly unconstitutional, logically prevailing the substantive constitutional article. In addition, the transitory dispositions were done by the permanent constituent, and article 128 of the Mexican Constitution, contains the original text approved by the Constitutional Congress on February 5, 1917. 

In other words, since that legislative act is contrary to the Constitution, the superior, paramount law of the land, then it is not law. You cannot regenerate the Mexican nation by turning the Constitution of Mexico in an absurd attempt to limit the power, by means of acting as if it was in its own nature illimitable; that is not, and cannot be, a forward transformation. And on top of all, according to article 3, fraction II, subsection a), of the Mexican Magna Carta, the democracy is not just as a juridical structure and a political regime, but a system of life founded in the constant economic, social and cultural improvement of the people, who exercise their sovereignty through the powers of the union, which signifies that those ballots does not necessarily are democratic, but can be demagogic or populistic; accentuating the fact that turbs of people attacking the judicial public functionaries that solemnly swear to act in accordance with the Constitution and the law; emphasizing those violent “protests”, are not in concordance with the definition of democracy established in the Political Constitution of the United Mexican States; and, additionally, notwithstanding the passion and the spectacle, underlining such cannot be more determinative than article 135 of the Mexican Constitution and the rest of the constitutional articles studied. 

Nota bene: in regards to the ministers of the Supreme Court, the magistrates and the judges being considered public functionaries, the original text approved by the Constitutional Congress on February 5, 1917, of article 73, fractions VI and XXVI, of the Constitution of Mexico, states that the magistrates (ministers) of the Supreme Court of Justice of the Nation, the magistrates and judges of the Federal District and territories, are all public functionaries that receive a remuneration for their services; for instance, “public services”, as defined by the original and actual article 13 of the Mexican Magna Carta. In addition, for example, articles 110 and 111 of the original text of the Mexican Constitution, refer to them as high functionaries of the federation; plus, article 111, also orders for the congress to issue a legislation concerning the responsibility of all the employees and functionaries of the federation. In that logic, Title Four of the Constitution of Mexico was originally called “Of the Responsibilities of the Public Functionaries”; until 1982, when it was renamed as “Of the Responsibilities of the Public Servants and Patrimonial of the State”. Hence, the designation of them as public functionaries in the original text of articles 73, fractions VI and XXVI, 110, 111, 113 and 114, continues to be hitherto unequivocal, since articles 124 and 128 of the Political Constitution of the United Mexican States that do preserve its original text, persist referring to them as federal functionaries that solemnly swear to act in accordance with the Constitution and the law, as was also commanded in the original text of article 97 of the Mexican Constitution, where all Supreme Court ministers should have had sworn before the congress to act in accordance with the Constitution and the law, and the circuit magistrates and district judges, that shall had had done it before the Supreme Court or the authority determined in the law for that purpose. Not to say that since 1994, the same article 97 of the Constitution of Mexico, expressly indicates the faculty of the Supreme Court to name and remove its functionaries and employees, as well as that of the magistrates and judges to do the same. 

Plus, there cannot be any doubt that they persist being public functionaries, since article 94 of the Mexican Constitution, as reformed in 1967, prescribed that the competence of the Supreme Court, its sessions, its plenary or specific functions, the attributions of the ministers, the number and competence of the circuit courts and of the district judges and the responsibilities of the functionaries and employees of the federal judicature in general, should have been ruled by the Constitution and the laws. And this text that distinguished them as “functionaries and employees”, remained in such way yet after 1982, when Title Four was renamed, since that article 94 of the Constitution of Mexico, just changed in its last part, in order to stipulate that the Supreme Court ministers will only be deprived of their positions in accordance with Title Four of the Constitution, now renamed as “Of the Responsibilities of the Public Servants and Patrimonial of the State”. And it was not until 1987, that the idea of public servants was introduced in article 94 of the Mexican Constitution, but only for the effects of their responsibilities, as the after-1982-renamed Title Four mandated it, and as is stated still today in article 108 of that Constitution. 

Nonetheless, in spite of article 94 of the Constitution of Mexico have had effectively included the idea of public servants since 1987, it has never been in regard to their remunerations, since starting from the reform in 1928, continuing to the reform in 1934, continuing to the reform in 1944, continuing to the reform in 1951, continuing to the reform in 1967, continuing to the reform in 1982, continuing to the reform in 1994, continuing to the reform in 1996, and continuing to the reform in 1999; throughout these reforms, it is clear that the remunerations perceived by the Supreme Court ministers, the circuit magistrates and the district judges for their services, cannot be diminished whilst they are occupying the office, notwithstanding still the ministers themselves, can actually be removed, but precisely in terms of the alluded Title Four of the Constitution, presently renamed, as we have seen, “Of the Responsibilities of the Public Servants and Patrimonial of the State”. 

Consequently, the indicated public functionaries, may be public servants as individual persons with administrative and/or criminal responsibilities, product of particular conducts that may impact their specific spheres of rights and/or of liberties, due to their normative status and their contractual link with the state, but not by reason of being in the general, objective and constitutionally fixed condition as members of an institution of the state, which follows to have independent existence disregarding them and regardless of any particular conduct they might hypothetically perpetrate. 

Therefore, as has been established in article 108 of the Constitution of Mexico since 1982, they, at least the Supreme Court ministers, the circuit magistrates and the district judges, are public servants in the exceptional case they commit an administrative and/or criminal misconduct, id est, for the purposes of Title Four of the Mexican Constitution, not concerning the general provisions apropos of their compensations and/or remunerations, product of their services as public functionaries who solemnly swore to act in accordance with the Constitution and the law.

The idea of the ministers, magistrates and judges receiving a compensation and/or remuneration for their public services, can easily be deduced from article 13 of the Mexican Magna Carta, that conserves its original text. As well as from the text of article 94 of the Constitution of Mexico, in its reforms of 1928, of 1934, of 1944, of 1951, of 1967, of 1982, of 1994, and of 1996, that is applicable today; and from article 73, fraction VI, point 4, in its original text, as well as in its reforms of 1944 and of 1951. But, above all, it can specifically be determined from the original text of article 127 of the Mexican Constitution, which signalized that the president, the individuals of the Supreme Court, the representatives and senators, and the rest of the public functionaries of the federation, who were so by means of a public appointment; that those functionaries, should have had received a compensation for their services, which must have had been settled in the law.  

Moreover, the interpretation of the ministers, the magistrates and the judges receiving a compensation and/or remuneration for their services as public functionaries, is certainly definitive, since it was not until 1987, that the idea of public servants was integrated to article 94 of the Constitution of Mexico, being thus impossible to ignore that article 127 of the Mexican Constitution, which is the fundament for the so-called Federal Law of Remunerations of the Public Servants, Regulatory of Articles 75 and 127 of the Political Constitution of the United Mexican States; resulting, accordingly, unreasonable and unfeasible to evade the fact that that foundational article 127, here and now in controversy, effectively contained the alleged conception of public servants since 1982, id est, albeit it was assuredly integrated to article 94 of the Constitution of Mexico as late as 1987, proving their conception as public servants has always been for the effects of their responsibilities (Title Four) and has never been in regard to their remunerations (Titles Three and Seven).

Not to mention, as previously studied, that article 97 of the Mexican Constitution, determinedly for strengthening its independence to boot, expressly indicates the faculty of the Supreme Court for naming and removing its functionaries, as well as that of the courts and judges to do the same.

To that end, furthermore considering the division of powers, the sovereignty and the structure of the Mexican political system hereunto validly explained; thereupon, the public servants of the actual text of article 127 of the Constitution of Mexico, as reformed in 2009, cannot logically be, neither the Supreme Court ministers, nor the circuit magistrates, nor the district judges, nor its functionaries; and less, as above mentioned, rooted in the same causes, can this apply to the so-named “transitory dispositions”, since those dispositions that forthwith at most manifest as defects in the legislative technique; since those cannot be contrary to the Constitution itself, additionally due to its lack of independent validity, not just before actual constitutional dispositions, but in regards to the original text and original conception of yet binding and yet operational articles of the Mexican Constitution, as were approved by the Constitutional Congress on February 5, 1917. 

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