The transfer of the National Guard to the Ministry of National Defense so that this unit manages the corporation administratively and budgetarily is unconstitutional, the Supreme Court of Justice of the Nation (SCJN) determined on Tuesday, thus the reform that militarized that security body is invalidated.
When eight votes were reached from the eleven ministers that make up the Plenary of the Court, the invalidity of article 29, section IV, of the Organic Law of the Federal Public Administration was declared, in the specific portion in which the Army was empowered to “ exercise operational and administrative control of the National Guard”.
This means that this control must now be exercised by the Secretary of Security and Citizen Protection, whose head is Rosa Icela Rodriguez Velazquez.
Likewise, the invalidity of article 12, section I, of the National Guard Law was declared, therefore that corporation will not be able to carry out its operations with a command structure made up of the Ministry of National Defense.
Article 13 Bis of the National Guard Law, which empowered the head of the Sedena to exercise operational and administrative control of the National Guard, was also unconstitutional.
In this way, when these numerals are invalidated, because they violate articles 21 and 129 of the Constitution, the Army will not be able to manage the corporation that was created through a constitutional reform in 2019.
Thus, the National Guard must return to the Secretariat of Public Security and Citizen Protection of the federal government, because -as established in number 129 of the magna carta- in peacetime “No military authority can exercise more functions than those that have an exact connection with military discipline.”.
The only court ministers who voted against declaring the reform that militarized the National Guard unconstitutional were Arturo Zaldívar, Yasmín Esquivel Mossa, and Loreta Ortiz Ahlf.
Public security must be civil
The eight ministers who voted in favor of invalidating the transfer of the National Guard to the Army considered that, when the corporation was created in 2019, it was clearly established that it was a civil corporation.
On the other hand, in the reform of September 2022, which did not modify the Constitution, but only the secondary laws, due to the fact that Morena and her allies in Congress do not have a qualified majority, it was intended to obviate constitutional article 21 that textually says -in its tenth paragraph – that “public security institutions, including the National Guard, will be civil, disciplined and professional.”
“The administrative, budgetary, organic, functional and command transfer is unconstitutional” of the National Guard to the Sedena, because it opposes the text of article 21 of the magna carta, specifies the sentence prepared by the minister Juan Luis Gonzalez Alcantara.
In this way, since there is no constitutional provision that allows the armed forces to carry out public security tasks permanently, as was intended with the militarized National Guard, the corporation must return to the Ministry of Public Security and Citizen Protection in the same terms in which it was before the legal reform of 2022.
However, we must not forget that exceptionally, nowadays the Army alone can carry out public security work until the year 2028, thanks to a constitutional reform that was approved in November 2022 by Morena, together with the parties of Labor, Green Ecologist, and the Institutional Revolutionary (PRI).
Last week, President Andrés Manuel López Obrador wanted the ministers of the Court to think carefully about their vote, because -in his opinion- it would be “very irresponsible” and “a serious mistake, a blunder” if the management is declared unconstitutional. National Guard military, as happened this Tuesday.
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surya palaces Journalist and lawyer, specialist in legal analysis and human rights. She has been a reporter, radio host and editor.