One feature of the political systems is that they adequate their institutions to the social claims. In the manner that the claims are multiplied the response channels are minimized and the institutional procedures turn more complex. This explains the fact that in the contemporary democracies the creation of institutions that can hardly be explained by the classical theory of power division is observed.

In México, as in the majority of the Latin American Countries, the social evolution has conducted to contemplate the autonomous organizations, that comply with different functions and that are contributors to the task of security of application of the law. In order to secure the certainty and fairness of its operation the creation of this kind of organizations is set forth by the Constitution. For some researchers as María del Pilar Hernández, of the Universidad Nacional Autónoma de México, with the creation of the constitutional organizations in the past years, the intention is to create different levels of independence of said organizations regarding the three traditional powers, this means, the Legislative, Executive and Judicial.

The Political Constitution of the Mexican United States (CPEUM) specifically sets forth the existence of three organization of this kind:

The first of them appears at the sixth paragraph of article 28 by referring to the Central Bank (Banxico) in the following terms:

“...The State shall have a central bank that will be autonomous in the exercise of its functions and in its administration. Its main purpose will be to procure the stability of the purchasing power of the national currency, thus strengthening the direction of the national development that corresponds to the State…”

The second mention is for the Federal Electoral Institute (IFE), which is included at the section V of article 41 and it mentions the features and functions of such electoral authority:

“.... The organization of the federal elections is a state function that is carried out by means of a public autonomous organization named the Federal Electoral Institute, which was granted with legal standing and its own patrimony, and in whose integration the Legislative Power of the Federation, the national political parties and the citizens participate, pursuant to the terms set forth by the law…”

The third mention corresponds to the National Commission of Human Rights (CNDH), which is expressly set forth in the fourth paragraph of section B of article 102:

“...The organism that is established by the Federal Congress will be named the National Commission of Human Rights; it will have management and budgetary independence, legal standing and its own patrimony…”

These three organizations have this in common: being autonomous in its development towards the three powers Executive, Legislative and Judicial, although in its integration such powers do interfere.

What are the constitutional autonomous organizations?

For any researcher or interested person in the political issues it is evident, as it has already been mentioned, that in the contemporary societies the “power” is no longer in hands exclusively of the conventional institutions of the State. Nowadays there is the participation, influence and even the exercise of such power by the business organizations, political parties, the civil society and the communication media, among others.

In this regard, Jaime Cárdenas, PHD, points out that the way of understanding the theory of power division has changed. For him,

“...The contribution of the baron of Montesquieu as the rigid separation of functions and authorities is no longer conceived, but as the distribution of authorities between entities of the State, all of them needy of mutual and reciprocal relationships, controls and interventions...”

In this sense it can be understood that the State requires of autonomous organizations that act as counterweight and that facilitate, conduct or favor the economical, political and social balance.

Some of the qualities of such organizations regarding their formal Independence, and the fact that insofar they are established at the Constitution they are considered as constitutional, will be addressed following.

The label “constitutional” derives naturally from the mention of its existence in the Constitution, reason for which they are favored from the principle of legal dominance; they acquire legitimacy and unquestionable competence to its activities as state organizations. In the case of Mexico, this condition provides a level of stability and permanence that differs from the rest of governmental institutions, insofar to reform them it is necessary to satisfy the conditions foreseen at article 135 of the Political Constitution of the Mexican United States. In other words, it requires wide political covenants among the political forces and the qualified majorities at the Congress.

In the area of institutions, the autonomous label must be understood as the scope of action in which it can decide in an independent manner in a framework of competence distribution, and it must not be confused with “sovereignty”, insofar a sovereign institution is somehow isolated from the exterior. In words of Thalía Pedroza, autonomy means ‘free will’ and ‘self command’; and it refers to a certain entitlement of self regulation and self government. This means, at an institution

“the independence is a typical situation of relative independence relationships, insofar it maintains a close relationship with others, that based on such tie limits the sphere of other individuals or else is limited by them”.

In addition to the foregoing, the Political Analyst of Colombia Ileana Melo, considers that the autonomous constitutional organizations are entities, commissions or state agencies […] that operate besides the branches of the public power, or besides the institutions with legal standing of public law, that without pertaining to any of the branches or organizations of the public power enjoy a certain level of autonomy and independence.

In the same sense for Jaime Cárdenas, PHD, the operation of said autonomous organization constitutes:

“...a way to conciliate the democracy of the parties, traditional powers, economical and social groups and democracy …

This insofar that

“...they arise from the society and the parties, but they are not completely due to them, and they are capable of surveying, make transparent and democratize the political life, as long as they do not create themselves in the close private and bureaucratic circles of the technicians…”

In order to comply with such functions “on the side” of the State, specific functions are delegated to such organizations, that correspond completely to the State. Therefore, following the arguments of Jaime Cárdenas, they are given

“… technical and administrative specialized activities that can be carried out at the side of political junctures and of the meddling of the traditional powers and the political parties… organizations capable of reducing the upraise of any of the classical powers, but it is also (about) of restricting and submitting the other social, political and economical “powers” to the law: parties, church, communication media, national and international business groups...”

Such conception is the one that, as María del Pilar Hernández sustains, predominates in Europe. For it, the constitutional autonomous organizations are essentially created to achieve a balance between the traditional powers, the political parties and other groups or real power factors. This means,

“...these are organizations of defense of the constitution and the democracy, and thus, it is important that they are set forth by the Constitution in order for it to regulate its integration and structure in order for their following operation to be independent”

Insofar the coincidences found between the authors referred on this subject, in this document the five main features that Jaime Cárdenas considers that the “autonomous” constitutional organizations must comply, as well as the weight principles that they must meet are resumed

• Immediacy: being mentioned and configured at the Constitution;

• Essentiality: resulting essential for the “democratic State of contemporary law”;

• Participate in the political direction of the State: their actions have decisive effects and contribute to direct the procedure of taking decisions;

• Equal rank: regarding the other organizations and powers they maintain relationships of coordination and never of subordination; and,

• Independence: organic, functional, and in some occasions, budgetary.

And the principles that must rule their behavior are the following:

1. Autonomy or independence not only formal but that reaches the financial aspects, in a manner such that the annual budgets are safe from political juncture agreements.

2. The appointment and permanence of their heads must be based on fair and impartial procedures, and must count with the backup of qualified majorities of the Legislative Power; once they are appointed they must have the guaranty of not being moved or removed, plus a sufficient pay that cannot be decreased during the assignment.

3. Free from politics. Their members must not be part of any political party, and their actions must be based without variation on technical criteria and never political criteria.

4. Immunity. The heads can only be removed if they fail to comply with their responsibility as public servants, and they must have some kind of legal immunity or proceedings privileges.

5. Responsibilities. These instances must present their accounting periodically to the Congress and to the citizens. “...As regards their authorities they will be the highest in the constitutional frame”.

6. Transparency. Except for “comprehensible” cases their acts and decisions can be consulted by any citizen.

7. Intangibility. In their characteristics of permanent organizations, their modification shall demand procedures of constitutional amendment more exigent than the ordinary.

8. Internal operation complying with the State of law. The officers of said organizations to whom a proceeding is filed for administrative liabilities will have the constitutional and procedural guaranties determined for all the citizens.

If the aforementioned description is added with the components of the level of independence of the electoral organizations, that María del Pilar Hernández proposes, which are:

1. Political autonomy: corresponds to the capability of operating with independence from other organizations and, besides the recognition of the character of maximum authority on the subject.

2. Financial autonomy, this means, independence to create, approve and exercise their budget.

3. Legal autonomy, the capability of auto regulation, providing themselves of their own regulations, and if the case might be, to have the authority to present bills in the scope of their competence.

4. Administrative autonomy, the capability of internal organization and to dispose of their material and human resources with independence.

It is important to point out that in the specific case of Mexico the CPEUM explicitly recognizes, besides the existence of the three constitutional autonomous organizations that have already been mentioned (Central Bank (Banxico); National Commission of the Human Rights (CNDH) and the Federal Electoral Institute (IFE)), the generic title to universities and other superior education institutions to which it grants autonomy, among them the Universidad Nacional Autónoma de México (UNAM) stands out, which has this condition since 1929, but besides it the National Association of Universities and Superior Education Institutions (ANUIES) that currently affiliates other 32 institutions in this condition, which are distributed along 25 entities of the Country.

Other organizations of the public administration that in Mexico contribute to the control and surveillance of different functions of the State, but lack of formal autonomy from the Legislative, Executive and Judicial Powers, or else their existence is not directly foreseen by the CPEUM, notwithstanding their importance in the social and democratic development of the nation are:

Founding of the Federal Electoral Institute (IFE)

At the electoral area the founding of the Federal Electoral Institute as autonomous organization is a milestone at the construction of the current electoral system in Mexico. To dimension the foregoing, it is convenient to make a swift trip through the key dates in the creation and transformation of such institution.

The first of them is beyond doubt April 6, 1990. On this date the Federal Gazette of the Federation (DOF) published an amendment to article 41 of the CPEUM, which established the following:

“The organization of the federal elections is a state function that is carried out through the Legislative and Executive Powers of the Federation... This function will be carried out through a public organization granted with legal standing and a patrimony of its own....”

This first IFE was an electoral organization sui generis. Although it had not been granted an autonomy, an institution evidently more plural and including of the political forces and the citizens was created, in which it was still imminent the presence of the Executive Power and the party that governed. Notwithstanding, the reforms that originated it represented one more step of a political transition framed within a more profound transformation that also comprehended cultural and economical aspects.

Four years later, on April 19, 1994, a new amendment to article 41 of the constitution gave the IFE its autonomy. But it kept the parenting of the Executive Power, through the Ministry of State. Such amendment had the following terms:

“The organization of the federal elections is a state function that is carried out by means of a public autonomous organization, which was granted with legal standing and a patrimony of its own, in whose integration the Executive and Legislative Powers of the Federation coincide, with the participation of the political national parties and of the citizens, as provided by the law...”

It was until the amendment published at August 22, 1996 that included the Federal Electoral Institute, by such name, at the Constitution, and it was granted with a complete autonomy by suppressing the presence of the Secretary of State in its highest direction board. The text of article 41 of the CPEUM was written as follows:

“The organization of the federal elections is a state function that is carried out by means of a public autonomous organization named the Federal Electoral Institute, which was granted with legal standing and a patrimony of its own, in whose integration the Executive and Legislative Powers of the Federation coincide, with the participation of the political national parties and of the citizens, as provided by the law...”

Thus, the autonomous IFE of our days is, in common terms, the result of a process of political transition deriving from the social evolution and the political opening that the Country lived between 1977 and 1996 and that became real in six electoral reforms. During those years for Ricardo Becerra, Pedro Salazar and José Woldenberg,

“...The issue at the bottom of the [Mexican] political transition is the one of a modern society that did not fit (nor wanted to fit) in the political formula of a dominant party… one sole party, one sole coalition, could no longer represent the interest, projects and pulse of a country that was rapidly modernized...”

This authors sustain that the Mexican transition consisted of the consolidation of the political parties as “machinery of the democracy”, this means in the columns of the electoral system which was absent at the country during the whole post revolutionary period.

In fact, the electoral system resulting from the political transition defines the parties as the sole mean to compete regarding the elections for the public offices and representation at Mexico. The experience of these years evidenced the need that the electoral law allowed a real competition for the political power through the ballot boxes; reason for which the participation of the citizens, of the political parties and of the involved authorities had to be regulated. In this period the importance of the legal framework to be transparent for all the actors and as detailed as possible to avoid interpretations was understood. With this there was a search to eliminate the governmental intervention in favor of its party and to obtain credibility from the citizens to the Electoral process as well as to the electoral authorities, among other aspects. 

Summarizing, the creation of the IFE obeyed, according to Becerra, Salazar and Woldenberg to one of the two central tasks of the political democracy in Mexico “...the creation of laws and institutions regulating [the] competition”. The other task was to provoke the consolidation of a system of political parties in a modern sense.