How Mexico Grapples with the Principle of Publicity

Mexico's constitution enshrines “publicity” (transparency). But how does this ideal clash with necessary secrecy in both the justice system and within the government itself?

How Mexico Grapples with the Principle of Publicity
The 2008 constitutional reforms brought the concept of publicity to Mexico's criminal justice system.

In a dusty corner of any decent law library, one might encounter the ghosts of legal systems past. These spirits, bound within faded case reports and archaic statutes, carry recollections of a different era. Mexico's own legal phantoms are especially restless; there's the specter of a system choked by impenetrable paperwork, where justice moved at a snail's pace, hidden from public view.

Yet, in 2008, this haunted landscape shuddered. A constitutional exorcism of sorts swept through, fueled by public outcry against a system perceived as creaky, untrustworthy, and worst of all, rife with impunity. At the heart of this exorcism was Article 20, infused with the revolutionary concept of an adversarial and oral criminal justice system. Think of it less like a dusty courtroom drama and more like a gladiatorial legal arena, where the weapons are words and the audience, theoretically, is the entire nation.

The change was meant to be seismic. Out went the archaic reliance on written proceedings, and in came the immediacy of spoken words flung across a courtroom. Concepts like the presumption of innocence, once fragile, gained newfound strength. This was a system designed to place victims and the accused at the forefront, rather than bureaucratic cogs in a grinding machine.

But change is rarely tidy, and along with this revolution came a host of essential principles – the bedrock on which the new justice system was to be built. Imagine them as the rules of this new legal arena: orality, immediacy, continuity…and most curious of all, publicity.

A Spotlight with Shadowy Corners

The word “publicity” might conjure images of those cheesy courtroom tabloids, but its legal definition is far more potent. It's about pulling back the curtain of secrecy that had shrouded Mexico's criminal justice system for so long. This was about letting the societal sunlight pour in, in hopes that such direct scrutiny might disinfect the festering wounds of mistrust and impunity.

But even enshrined in the Constitution, this principle of publicity is a bit like a poltergeist – theoretically powerful, yet elusive. For one, it sits cheek by jowl with Article 6, guaranteeing the right to information while simultaneously carving out those all-important exceptions: public interest and national security. These are the shadowy corners where transparency can be politely shown the door.

The paradox is that even the best of intentions can get lost in the labyrinth of actual practice. If the devil is in the details, then Mexico's legal demons are a mischievous bunch indeed. Imagine an over-burdened system where legal resources are stretched thin, where a forgotten case file can derail the gears of justice more effectively than any shrewd lawyer. This is the reality in which the grand principle of publicity must contend.

Mexico's journey toward a truly transparent judicial system is not unlike a dusty road under construction – potholes abound, progress is halting, and every so often, the entire route changes direction. It's a attestation to the fact that even constitutional principles are subject to the rough and tumble of politics, the limitations of resources, and the simple inertia of large, slow-moving systems. Yet, there is movement, however halting. There is that persistent, perhaps uniquely Mexican, blend of pragmatism and idealism that keeps this revolution, with all its imperfections, lurching forward.

Mexico's Open-Door Policy (Sort Of)

If knowledge is power, then Mexico has been guarding its power stash quite fiercely. That is, until Article 6 of the Constitution shook things up. This little clause declared that information should be accessible, almost like a public utility. Every person, it proclaimed, is entitled to know. It sounds so revolutionary, like a bureaucratic Berlin Wall crumbling. But just like with any seismic shift, there are aftershocks and plenty of lingering dust.

Let's dissect the article, shall we? Imagine it as a government office with two doors. The main entrance, flung wide open, boldly trumpets “The right to free access to plural and timely information…” — a siren call for transparency enthusiasts. You can practically see investigative journalists and curious citizens swarming in, demanding those juicy, once-hidden details about government spending and political power games.

But then your eye snags on the other door, the slightly smaller, more subtly marked one: “…may only be temporarily reserved for reasons of public interest and national security…” Ah, the loopholes emerge, draped in serious, patriotic terms. This is where the Mexican transparency spectacle truly begins.

“Public interest” and “national security” – potent words, weighty concepts, and beautifully elastic. They can be molded to protect legitimate state secrets, and they can, alas, also be used to shield questionable dealings from scrutiny. It's a balancing act, this transparency move, between the right to know and the supposed need to keep some things veiled.

Now, don't get the wrong idea; Mexico has come a long way. The General Law of Transparency and Access to Public Information further refined the concept with the bold declaration of “maximum publicity.” Think of it as the law's way of yelling at itself to default towards openness. But as always, the exceptions lurk, like those pesky footnotes designed to unravel the very principles they claim to uphold.

And the devil, of course, is in those details. “Obligated subjects must document every act…” sounds noble on paper, but in a world of overloaded bureaucrats, misplaced documents, and conveniently 'misinterpreted' rules, the reality can be rather different. It's here, in the shadowy corners of practical implementation, that the transparency tango loses its seductive rhythm and becomes a clumsy bureaucratic shuffle.

Imagine the life of a mid-level government employee tasked with upholding Article 6. They face a constant barrage of information requests, a tug-of-war between disclosing everything and protecting the vaguely defined “public interest.” They might be well-intentioned, but their resources may be limited, their guidelines murky, and the pressures from those above very real. This is the front line of transparency, where lofty ideals collide with overworked photocopiers and a fear of crossing invisible lines.

Parliament Under a Microscope

The grand halls of Parliament, with their polished wood and hushed tones, often feel like a world apart. It's where the theoretical ideals of representative democracy collide with the messy reality of politics — with a healthy dose of self-importance thrown into the mix. Mexico decided it wanted to pull back the curtain on this world, aiming to shrink the distance between those who wield legislative power and the people whose lives are shaped by those very laws.

Enter the principle of publicity, enshrined in those deceptively straightforward articles of parliamentary law. Think of it as Parliament getting its own reality TV show, with a few carefully placed black bars for good measure. Every opinion mulled over by those elected officials must, according to Article 87, be subjected to a “declaration of publicity” – formally announced and thrust into the limelight. It's as if the law itself is reminding these politicians that the public is watching.

Now, legal declarations and actual transparency aren't always a perfect match. This is evident in Article 89, where the process of legislative visibility gets a rather strict set of performance instructions. Imagine a spotlight circling a room: if an opinion isn't presented within a certain deadline, the president must formally declare it so. The clock is ticking, and the pressure is on.

Then comes the crucial part: those neglected opinions must be debated and voted on. Failure to do so means they are “definitively concluded”. It's the parliamentary equivalent of a mic drop, with a side-eye towards bureaucratic foot-dragging. This rule reveals a clever bit of psychology: by forcing debate, it aims to discourage those who might prefer burying inconvenient matters within an avalanche of paperwork.

The principle of publicity, in theory, should empower citizens. Knowledge of how laws are made and who crafts them is essential for holding politicians accountable. But here's the quirk of it all: this transparency isn't absolute. True, “publicity” is celebrated, yet it's the details of how exactly these opinions are made accessible, the speed of the process, and the potential bureaucratic roadblocks that hold true power.

Think of it like those backstage documentaries. Sure, you see the actors getting ready, but the truly juicy power broker conversations, the deals, and the compromises, might remain frustratingly off-screen. The Mexican Parliament's brand of public spectacle offers a glimpse, but perhaps not the unvarnished truth that full transparency demands.

Mexico's experiment in legislative openness is an intriguing case study. It's a reminder that while ideals like publicity are worthy, their real impact lies in the relentless push for clarity. Who decides what the public actually sees? How easy is it to access that information? Are there ways for the citizenry to demand even more in-depth scrutiny?

The Guardians of Transparency

In the context of open government, there exist laws like the General Law of Transparency and Access to Public Information. These laws are potent spells, aiming to banish the specter of governmental secrecy. But like all good spells, they require skilled practitioners – enter the “guarantor organizations.” Think of them as bureaucratic knights, armed with legal jargon and a fierce belief in the power of information.

Article 8 of the Law lays down the gauntlet, outlining the noble virtues these knights must embody:

  • Certainty: They provide legal reassurance. Rules will be followed, procedures will be clear – a shield against arbitrary action. Picture them as pedantic monks, scrutinizing every parchment with meticulous care.
  • Efficiency: They are champions of swift access to information. These knights don't tolerate bureaucratic dragons guarding their hoards of knowledge. Think of them as information couriers, dodging red tape and insisting on timely delivery.
  • Impartiality: Unmoved by political winds, they remain neutral arbiters. Imagine them as blindfolded Lady Justices, minus the scales and with a stack of case files instead.
  • Independence: They answer to a higher power – the law itself. No politician or interest group can sway them from their righteous path. In theory, at least…
  • Legality: Rules are their bible. Every query, every decision, must be rooted in the intricate web of regulations. These knights wield the law like a carefully sharpened sword.
  • Maximum Publicity: Their ultimate goal. They fight to make information accessible, to tear down the walls obscuring public records. Knowledge, they believe, is the key to keeping power in check.

This all sounds incredibly noble, doesn't it? But the reality, as always, is a touch more… human. Guarantor organizations are populated by individuals, with all the strengths and weaknesses that entails. They can be brilliant and committed, or overworked and disillusioned. They operate within a system that may or may not fully support their quest.

The principle of “maximum publicity” is often in direct conflict with a culture of lingering secrecy. Picture a knight demanding a dusty file, only to be met with blank stares and claims of “misplaced” documents. These battles are rarely fought on grand battlefields, but in the mundane trenches of filing cabinets and uncooperative bureaucrats.

And lest we paint these guardians as entirely saintly, let's not forget the seductive power of procedure. Obsessive focus on legal minutiae can sometimes become a shield, a way to deflect scrutiny or delay the release of sensitive information. “We're simply following protocol” is a mighty convenient excuse, especially when wielded by an organization with significant power.

The Transparency Quest: An Unfinished Saga

Mexico's commitment to the principle of publicity is evident in laws like this one. Yet, the true test lies in how these organizations navigate the messy intersection of theory and practice. Are they truly independent? Do they have the resources and clout to make a meaningful impact? Can they overcome bureaucratic inertia and cultural resistance to openness?

The battle for transparency is waged document by document, denial by denial. It's less a heroic epic and more a long, sometimes tedious grind, punctuated by occasional victories. True progress requires not just valiant knights, but a society that understands the power of information, and that relentlessly demands accountability from the very institutions designed to serve it.

In-text Citation: (Mondragón, 2024, pp. 44-47)