Gender and constitutionalism in Mexico: from quotas to parity?

On February 10, 2014 Mexico, passed an amendment to article 41 of the Federal Constitution stating that political parties should put in place "...rules to ensure gender parity in the nomination of candidates in federal and local congressional elections." The amendment is the first of its kind in Mexico to oblige political parties to observe and respect the principle of gender parity in the composition of candidates’ lists for elective office.

The seventh of a number of constitutional amendments (the others being in 1977, 1986, 1990, 1993, 1994, 1996 and 2007-2008) aimed at reforming the Mexican electoral system, this development ushers in a new era for the political participation of women. A product of broad political consensus, it was a central element of the so called Pacto por Mexico, a political agreement signed by Mexico’s main political parties—the governing Institutional Revolutionary Party (PRI), the National Action Party (PAN), and the Party of the Democratic Revolution (PRD)—shortly after President Enrique Peña Nieto’s accession to the Presidency in 2012. The amendment marks the end of a history of male privilege and dominance of public political space. It is the culmination of decades of struggle for equal political voice— marked by numerous landmark court judgments, pressure from the women’s movement and other civil society organizations, piecemeal legal and constitutional reforms as well as international commitments by the Mexican state—going far back into the 1900s.

Early beginnings

The women’s movement for passive and active suffrage—the right to vote and to be elected—is traceable to January 1916 in the Mexican state of Yucatán, when women meeting in the First Feminist Congress (as the gathering of 620 delegates was called) first claimed the right to equal participation in political processes. Backed by the state’s liberal-minded Governor Salvadore Alvarado, this movement resulted six years later in 1922 in the enfranchisement of women and the election of the first woman, schoolteacher Rosa Torres, into public office to serve as president of the Municipal Council of Merida. The enfranchisement of women quickly spread to other localities including Chiapas in 1925 and Puebla in 1935. However, it would not be until 1953 that women would be granted the right to vote and to be elected in federal elections. A 1974 constitutional amendment would consolidate this progress by recognizing men and women as equal citizens.

Quotas have their limits too

Between the mid-1990s and late 2000s, gender quota for candidate lists increased from 30% to 40% in the federal legislature to offset some of the structural barriers preventing women from reaping the full benefits of the right to be elected recognized in previous reforms.
Although introducing and strengthening gender quotas between 1996 and 2008 resolved the problem of actually getting women elected into legislatures, it did not resolve the problem of underrepresentation. If anything, quotas brought the issue of underrepresentation to the fore. To put this in perspective, women currently account for only 37% (or 185 seats) in the 500 member Chamber of Deputies and 34% (or 44 seats) in the 128 member Senate. Analyzed from a historical perspective, this number, unarguably, represents significant progress. In 2000, considered the break-through year for progress in women’s political participation, women accounted for only a total of 25% of the seats in the federal legislature (the Chamber of Deputies and the Senate combined). The situation was worse ten years prior, with women accounting for only 3.1% of the seats in the Senate and 8.8% of the seats in the Chamber of Deputies from 1991-1994. The number of women in the federal legislature diminishes the further back in time one goes. Yet this significant progress must not detract from the reality that relative to their proportion of the population, the current level of women in the national legislature - 37 %- still leave them significantly underrepresented.

This reality has been recognized by the Electoral Tribunal of the Judicial Power of the Federation (TRIFE) in two decisions—SUP-JDC-611/2012 and SUP-JDC-510/2012— from April 24, 2012. In the first case, the court found that the provisions of the Federal Code of Electoral Institutions and Procedures (COFIPE) protect equal opportunities and gender equality. The court found that failure to give full meaning to the law has resulted in the underrepresentation of women and the serious undermining of democracy. In the second case the court held that provisions relating to gender equality aim to temper historical discrimination rooted in Mexican cultural and historical political practices. It found, furthermore, that all interpretations of electoral laws must be based on a ‘reasonable test’ geared towards achieving gender equality, and emphasized the need to incorporate international standards on gender equality in the electoral law.
Thus the February amendment, which was preceded by President Nieto’s decision in October 2013 to call for parity, is a constitutional response to the problem of continuous underrepresentation of women under the existing quota system.

From words to action

With the February amendment, Mexico joins the ranks of Costa Rica, Bolivia, Venezuela and Ecuador as the fifth country in Latin America to constitutionalize gender parity at least in the candidate lists of political parties. Yet how much of this will translate into any meaningful change depends on a number of interrelated factors. Two of these—the electoral system and the texts of application or implementing legislation for the amendment—merit attention.

Electoral system

Probably one of the most complex in the world, the system for electing representatives to the federal legislature varies depending on whether it is the Chamber of Deputies on the Senate. For the Chamber of Deputies, a first-past-the-post system in single member districts is used to elect 300 of the 500 deputies. The remaining 200 seats are elected by proportional representation through closed party lists in five multi-member districts of 40 seats each. The Senate’s 128 members are selected through a parallel system whereby 96 members are elected by a majority formula and 32 members are elected by a proportionality formula. As the amendment only obliges political parties to nominate the same number of women and men to their party lists, it does not necessarily follow that it will translate into parity in the legislature, absent a thorough reform or even overhaul of the entire electoral system.

Legal design for implementation

How the secondary laws or texts of application for this amendment are crafted will be critical. Although parity is stated in the constitutional amendment, it is necessary that implementing laws mention “electoral parity” explicitly to guarantee full respect for the right to equal treatment, as well as effective application of the amendment. One reason for this is the historical conception of the Mexican Constitution as a programmatic text of political principles rather than a normative or legal document. Accordingly, what makes the law ‘real’ in Mexico is more a combination of statutory enactments and/or judicial pronouncements than constitutional principles alone.

April 30 has been set as the deadline for developing these laws. With less than a few days to go however, Congress is still to commence discussion on the passage of the electoral laws. It is not uncommon in Mexico that it takes longer than anticipated or even that Congress fails to pass the necessary implementing legislation. While the possibility exists for any stakeholder to challenge such congressional inaction through a so-called controversia constitucional, which is a judicial action against Parliament for an unconstitutional legislative omission, it is unclear what the outcome will be as the procedure has hardly ever been used.

Finally, one of the goals of organized civil society’s current efforts is to include substantive equality of political rights. This constitutional amendment, without doubt, is a big step forward in that direction. However, it remains to be seen whether the next local and federal elections in 2015 will produce real parity in gender representation in the federal legislature. Despite the progress in recent years, Mexico remains a largely male-dominated society with an entrenched paternalistic culture that has kept women on the fringes of political space. Legal and constitutional reforms alone, without a cultural shift or reform in the way politics is conducted, may not be enough.

Jose Miguel Cabrales (PhD) is a lecturer and researcher in Comparative Constitutional Law and Human Rights at Autonomous University of Tamaulipas, Mexico. He is also a researcher for the National Council of Science and Technology.