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Federal congress, various states fail to amend legislation on transparency and access to information as required by constitutional reform

(ARTICLE 19/IFEX) - The following is an ARTICLE 19 press release:

Mexico: Legislative Power Breaches the Constitutional Provision on Transparency and Access to Information

The Federal Congress, together with seventeen local congresses, has breached the constitutional obligation to amend legislation on transparency and access to information.

A constitutional reform that specifically regulates the fundamental right of access to information in Mexico was published on 20 July 2007. Transitory Article 2 of the Decree of Promulgation establishes the obligation of the federal government, state governments, and the Federal District (Mexico City) to issue laws on the right to information and transparency, or to complete the necessary amendments to existing legislation within one year of the decree entering into force. That deadline was reached on 20 July 2008.

Article 6 of the current constitution states that to exercise the right of access to information, the federation, states, and the Federal District should legislate on the principle of maximum disclosure; the protection of personal data; and the guarantee of access to public information, free of charge.

This article puts special emphasis on the establishment of mechanisms to access information, and procedures for rapid appeal processes that are brought before specialised and impartial state institutions, with autonomy of operation, management, and decision-making.

The constitutional mandate establishes the obligation of the authorities to keep their documents in regularly updated administrative archives. It also establishes the obligation to repeal laws that conflict with the new legislation.

However, in the past year only the states of Baja California Sur, Chiapas, Coahuila, Colima, Durango, Nayarit, Oaxaca, Quintana Roo, San Luis Potosí, Tabasco, Veracruz, Puebla, The Federal District (Mexico City), and Zacatecas have repealed conflicting legislation. ARTICLE 19 has observed that the adopted amendments breach the constitutional provision relating to the issuing of laws for the protection of personal data and archives.

There is also evidence of a growing tendency of state governments to divest the new powers. This trend is most clearly illustrated in the court cases of Querétaro and Jalisco. In the former case the local constitution was reformed to merge the Transparency Institute with the Human Rights Commission. This is contrary to the principle of specialisation of guaranteed organs established in Article 6 of the constitution. In the case of Jalisco, an attempt was made to debilitate the autonomy of the decisions of the guaranteed organ, by making it possible to challenge their resolutions in the administrative tribunal with a petition from the obliged subjects.

As a signatory of the International Covenant on Civil and Political Rights, Mexico is obliged to adopt laws to guarantee freedom of expression. Only the legislative assembly of the Federal District, however, has shown the political will to do this beyond the minimum standards established in the Constitution.

It should also be considered that while the right to access information is a fundamental right, it is also a facilitative right. The declarations of the Special Rapporteur for Freedom of Expression state that the free flow of information is essential for the protection and realisation of a wide range of other rights. The initiatives that have been passed fail to establish the Government's obligation to proactively disclose information of public interest.

It is also important that prospective legislation details the criteria for the election of representatives of transparency institutions according to international standards. This process has to be conducted in compliance with the principles of transparency. This includes: public participation in the nominating process; promoting open public discussion in terms of candidate's merits; permitting a public veto in order to secure candidates' independence; and a mechanism to resolve any conflicts of interest among the representatives.

ARTICLE 19, the Civic Alliance - Alianza Cívica, the CIMTRA Collective, the Centre for Analysis and Investigation (FUNDAR), and the Collective for Transparency are concerned by the lack of political will to guarantee progressive advances in legislation that relates to the right to access information, and call on the legislature to comply with the constitutional mandate.

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