President Andrés Manuel López Obrador presented an initiative to reform article 33 of the Constitution. With it, he intends to fulfill the promise that he has repeatedly made to, in terms of his own saying, limit the expulsion of foreigners from our country and expand their right to the free expression of ideas. As I will explain, it is one thing to propose an initiative and another to eliminate or moderate such cases of expulsion and expression.
With regard to the expulsion of foreigners, in the original text of the 1917 Constitution, it was established that the President had the exclusive power to “make any foreigner leave the national territory immediately and without the need for a prior trial.” whose permanence it deems inconvenient”. Beyond the dramatic nature of this constitutional statement, the truth is that, during its validity, the Supreme Court of Justice of the Nation recognized on several occasions the amparo action promoted by those possibly affected. In some cases, it even went so far as to grant them suspension to prevent immediate expulsion if the constitutional text seemed to allow it. When carrying out the important constitutional reform of June 10, 2011, the text of article 33 was modified for the first and, until now,The purpose of the reform was to determine that the presidential power could be exercised after hearing the interested party, and it should be based on the law issued in this regard by the Congress of the Union, which would have to provide for the place and time of detention. Regardless of the fact that to date Congress itself has not issued the aforementioned law, the truth is that the conditions for the expulsion of foreigners already have —or should have— a basis of legality and jurisprudence that would restrict the possibilities of arbitrary action by part of the Federal Executive.
With regard to the free expression of the ideas of foreigners in our country, in the original text, it was foreseen that they could not interfere in any way in the political affairs of the country. This wording was not modified in any way in the aforementioned 2011 reform.
In light of the above legal conditions, the presidential proposal must be analyzed. On the one hand, with regard to expulsion, it is proposed that it be carried out once the administrative procedure has been exhausted, as long as it is proven that the stay in our country constitutes a risk or affectation of national security. Unlike the preceding text, it speaks of the culmination of the administrative procedure, which cannot be considered a true addition as it is not possible to assume that the expulsion could be carried out without its culmination. On the other hand, and more alarmingly, the granting of powers to the President based on national security implies the constitutional acceptance of a state of affairs which, unfortunately, are already widespread in our country. I explain. The National Security Law establishes the cases in which it could be compromised, as well as the competent authorities to determine it. Despite the foregoing, the President and various officials of his public administration use the concept of national security to break the legality to which their actions must be subject in the assignment of contracts, in the omission of tenders or in the refusals to provide public information. For these reasons, it is worrisome that the Constitution intends to assign the power to the President to define the meaning and scope of that security, with respect to foreigners.
As regards the right to the free expression of ideas, there is a modification with respect to the prevailing conditions. From the total refusal to participate in the political affairs of the country, it to the possibility of them expressing their ideas. However, it is only a partial modification, since other constitutional precepts remain untouched, in which the restriction on the rights of foreigners regarding petition (art. 8), political association (art. 9) is maintained ) or obtaining certain jobs (art. 32).
In the final balance, the proposal of President López Obrador is, to say the least, far below his speeches. On the one hand, he promised the elimination of an unparalleled article in modern constitutionalism; however, he modularized it so that he and his successors decide how to apply it. On the other hand, the great promise of expanding the political participation of foreigners is limited to only one of its components. Regardless of these intrinsic restrictions, the granting of the presidential power to define matters concerning national security is dangerous. If we look carefully, we will see that this concept gains more presence and relevance every day in the definition of many public spaces and tasks. Without being alarmist, there is a parallelism between the concepts used in frankly authoritarian regimes, with that of national security that is now spread among us. We must be aware of this, since there is the possibility that, little by little but consistently, we will have to face the reduction of the public, under the premise that everything or much belongs to the closed sphere and is administered by a power that assumes that it protects the nation.
Mexico Daily Post