Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
- State Court
- Federal Court
Further areas addressed
Due to the health emergency generated by the SARS-CoV2 virus (COVID-19) and the measures adopted by the health authorities to avoid further contagion and it propagation (home confinement, social distancing, and avoiding the concentration of people in reduced spaces, among others), the State of Guerrero issued “Decree number 460, by which Articles 13 bis and 272 bis were added to Law number 483 of Institutions and Electoral Procedures of the State of Guerrero.” (June 2, 2020 was the date of publication in the official newspaper).
A public action declaring its unconstitutionality was filed by the State of Guerrero regarding the electoral norms issued by the federal body. It stated that there was a contrast between the Law of Electoral Institutions and Procedures of the State of Guerrero and the rights to prior, free, informed and culturally adequate consultation, as well as the rights to autonomy and self-determination of the indigenous and Afro-Mexican peoples and communities; a normative act that also ignored the standards recognized by the Supreme Court regarding the right to prior consultation that these communities maintain.
The Court criticized the decision and argued that the health crisis was being taken advantage of to approve legislative measures that could directly affect the federal indigenous and Afro-Mexican peoples and communities by evading the constitutional obligation to consult with local communities in order to make decisions in their territories. Consequently, it considered that Articles 2 of the Federal Constitution and 6 of ILO Convention 169 were directly violated and, consequently, Decree 460 of 2020 was declared invalid.
Facts of the case
On March 15, 2018, a request for the registration of candidacies for federal and local deputies and regidurías was filed before the Electoral and Citizen Participation Institute of the State of Guerrero. The Request was denied for not having the constitutional and legal requirements.
On April 22, 2018 the plaintiff, dissatisfied with the decision, filed a citizen electoral lawsuit before the Electoral Tribunal of the State of Guerrero (TEE/JEC/037/2018).
On May 2, 2018 the State Electoral Court confirmed the response of the local Institute, for which a lawsuit for the protection of political-electoral rights was filed (SCM-JDC-402/2018).
On June 29, 2018, the Regional Chamber of the Electoral Tribunal of the Judiciary of the Federation, corresponding to the Fourth Plurinominal Circumscription, based in Mexico City, issued a judgment in which it bound the Congress of the State of Guerrero to harmonize its State Constitution and internal legislation, within a peremptory term and before the beginning of the next electoral process, to the Constitution and international treaties on democratic participation and the rights of indigenous and Afro-Mexican peoples, and to implement affirmative actions in their favor, which would contribute to the creation of the effective participation of indigenous people in the aforementioned popularly elected positions.
On August 7, 2019, the matter was passed to the Commissions of Constitutional and Legal Studies, as well as Justice and Indigenous and Afro-Mexican Affairs, for purposes of compliance.
On May 30, 2020, the Draft Decree was formulated by which Articles 13 bis and 272 bis were added to Law Number 483 of Institutions and Electoral Procedures of the State.
On June 2, 2020, Decree number 460 was published in the Official Gazette of the State of Guerrero.
Type of measure challenged
Measures, actions, remedies claimed
- Guarantee the participation of indigenous and Afro-Mexican peoples in popularly elected electoral processes.
- Application of Supreme Court precedents regarding the protection of the rights of indigenous and Afro-Mexican peoples and the guarantee of prior consultation.
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Supreme Court considered that the challenged decree introduced legislative changes that, when systematically evaluated, affected the human rights and political participation rights of the indigenous or Afro-Mexican peoples and communities, since it referred to the nomination of candidates of indigenous or Afro-Mexican origin by the political parties for deputies of a relative majority and members of the municipal councils. Likewise, it regulated the manner of accrediting qualified self-ascription for registering candidacies, for which reason, it was insisted, all these new assumptions affected or could directly affect the rights or the autonomy of indigenous peoples and self-determined communities.
The right of indigenous peoples and communities to consultation has a basis in Article 2, Section B, of the Federal Constitution specifically stating that, in order to promote equal opportunities and eliminate any form of discrimination, the Federation, the federal entities, and the municipalities are obliged to implement necessary policies to guarantee the rights of indigenous and Afro-Mexican persons and community development which must be designed and operated jointly with them.
Furthermore, this right can be extracted from the principle of self-determination provided for in Article 2°, section A, sections I and II of the Constitution, which empowers indigenous peoples and communities to decide their internal forms of coexistence and social, economic, political and cultural organization, and in section C, which recognizes these rights for Afro-Mexican peoples and communities as well.
Although officially since March 19, 2020 Mexico has undergonethe effects generated by the pandemic generated by the SARS-CoV2 virus (COVID-19), all state authorities were obliged to comply with a series of measures adopted to guarantee the right to life, health, and integrity of people, particularly those in the most vulnerable conditions. The health emergency measures cannot be used as an excuse to adopt decisions without implementing a prior, informed, culturally appropriate consultation procedure through their representatives or traditional authorities in good faith for the indigenous and Afro-Mexican peoples.
The High Court observed that, from the same date, the Legislative Power of the State of Guerrero should have abstained from issuing provisions that could directly affect the indigenous and Afro-Mexican peoples and communities of the State, if it did not implement a prior, informed, culturally adequate consultation procedure through their representatives or traditional authorities in good faith, in which the right to protection of the health and the very life of the indigenous and Afro-Mexican population of the State of Guerrero would be guaranteed.
Conclusions of the deciding body
The Court stated that it was constitutionally reprehensible to take advantage of a health crisis to approve legislative measures that were likely to directly affect the indigenous and Afro-Mexican peoples and communities of the federal entity by evading the obligation to carry out the consultation required by the Federal Constitution.
Consequently, it considered Articles 2 of the Federal Constitution and 6 of ILO Convention 169 were directly violated and, consequently, Decree 460 of 2020 was declared invalid.
Fundamental Right(s) involved
- Political rights
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right of indigenous and Afro-Mexican peoples to prior consultation and the right to prior consultation.
- Articles 2 of the General Constitution and 6 and 7 of Convention 169 of ILO Indigenous and Tribal Peoples in Countries
- Inter-American Commission on Human Rights, Recommendation number 1/2020.
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The court did not explicitly refer to the use of balancing techniques.
The Court applied the principle of legality by giving pre-eminence to the law requiring prior consultation with indigenous communities before making a public decision.
The principle of prior consultation refers to a dialogue between the State and indigenous peoples, the purpose of which is to reach agreements on administrative or legislative measures that may affect the collective rights of communities. The court applied this principle by concluding that the local legislature was obliged to carry out prior consultation on indigenous matters, which is why it incurred a violation by not doing so thereby circumventing the self-determination of peoples and communities, preventing them from giving their opinion on a topic that was likely to impact their worldview which further implied a form of cultural assimilation. Based on this consideration, the court emphasized that the local Congress must carry out prior consultation with indigenous and Afro-Mexican peoples and communities of Guerrero, in which it must respect the principles and standards set forth by the Supreme Court. This implied prior consultation, in a free, informed, good faith manner, about all those regulations that were likely to directly affect original peoples, both those that gave rise to the declaration of nullity that was decreed during this process, as well as all those that may affect them directly and are intended to be included in the decree that, in compliance with this sentence, was issued. The objective was to reach a culturally appropriate agreement.
Outcome of the decision is:
Accedes to the claims obliging the electoral authorities of the State of Guerrero to comply with the requirement of prior consultation before enacting the decree challenged as unconstitutional.