The people power behind Mexico City’s new constitution
By Gregory Scruggs
MEXICO CITY, Mexico — When you think about people drafting a constitution, it might conjure a bunch of white statesmen in powdered wigs. Francisco Fontano Patán doesn’t fit that description.
Last year, the 29-year-old travel agent read in the newspaper that Mexico City was drafting its first constitution and accepting ideas from everyday citizens like him. Anyone could write a petition via the online platform Change.org. If the idea garnered enough signatures, a drafting committee appointed by Mayor Miguel Ángel Mancera would meet with the petitioners to consider the proposal.
Fontano had no political experience or history as an activist. But he is passionate about parks and their potential to combat air pollution. “I believe climate change is the most serious challenge that we face,” Fontano says. “And one way of fighting that at the local level is by increasing the amount of green areas and guaranteeing that we don’t lose the ones we have.”
So he wrote a four-paragraph petition calling for the new constitution to guarantee a minimum amount of green space per resident. “I had nothing to lose,” he says of the online process, which took him just a few minutes. Fontano shared the petition on his social media accounts and garnered about 600 signatures. Then Change.org blasted it out via e-mail to registered users in its database that had previously expressed support for environmental causes. It quickly surpassed the 10,000-siganture threshold to get an audience with the official committee writing the constitution’s first draft.
“When I saw what happened, I said ‘Wow’,” Fontano recalls. “It made me feel more responsible.” The armchair activist suddenly had to get serious about his proposal. He researched the World Health Organization’s standard for green space — it says a city should have at least 9 meters per capita. And he prepared a formal presentation, delivered to the drafting committee and streamed live on Periscope, arguing why language articulating that standard belongs in Mexico City’s new constitution.
This week, that constitution — officially, the “Carta Magna” — was formally approved. Not only did most of Fontano’s parks proposal make the final cut. So did other citizen-suggested ideas such as LGBTI rights and rights for persons with disabilities. The constitution will go into effect in September 2018. Fontano is satisfied with the result. “I felt heard,” he says.
To say that Mexico City “crowdsourced” its new constitution, as some media outlets have, isn’t quite right. A committee of legal experts, academics, activists and others wrote the bulk of the document and another assembly got the final say over planks proposed by citizens. Still, the yearlong process that produced the constitution pushed citizen engagement in exciting new directions. By the measure of its 480,000 followers on social media, it was the most popular Change.org campaign ever.
The new constitution also represents an innovation in local governance that city leaders around the world should watch closely. It boosts the city’s autonomy within Mexico’s federal system and gives the mayor more power, while decentralizing some decision-making to neighborhood-level elected councils. “It’s a historic event, a legacy for Mexico City,” Mayor Mancera said this week in an interview on Mexican television. “This is a big step forward for the citizenry.”
The Carta Magna is the culmination of political reforms that have been playing out for decades.
Under the country’s national constitution — which, coincidentally, turns 100 this year — the capital city was set up as a creature of the national government. The city’s official name was the Federal District — “Distrito Federal” in Spanish, or as almost everyone called it, the “D. F.” This is a common fate for seats of national government: Caracas, Canberra and Kuala Lumpur, among other capital cities, remain subject to the whims of their national governments on many local matters.
The classic case of that phenomenon is Washington, D. C. Citizens of the U. S. capital only won “home rule” — the right to elect a mayor and council — in 1964. To this day, the city’s residents do not have voting representation in the U. S.Congress. Longtime efforts to turn D. C. into a state are stalled with Republicans opposed to statehood now firmly in charge of the national government. If anything, the Congress may repeal city laws restricting access to handguns and using public funds to pay for abortions for women with low incomes.
For decades, Mexico City was essentially in the same boat. In the 1980s, democracy activists began agitating for reforms to the city’s governance structure. In 1987, the national government acquiesced to demands for more direct democracy and granted the city a popularly elected legislature with limited powers. Mexico’s president continued to appoint the mayor, but a second round of reforms in 1996 made the city’s executive an elected position as well.
The next big moment came in 2013. That’s when President Enrique Peña Nieto struck a deal with his two rival political parties to endorse the Pacto por México, a series of energy, education, fiscal and telecommunications reforms that some experts say helped jumpstart the Mexican economy. Mayor Mancera was among the politicians Peña Nieto bargained with. In exchange for the mayor’s support, Peña Nieto agreed to back amendments to the Mexican constitution that would turn Mexico City into the 32nd “federal entity,” basically on par with a state.
One symbolic but highly visible result of this deal came about a year ago. An amendment to the national constitution officially changed the capital’s status from a federal district to, simply, Mexico City. The nickname “D. F.” went away for good, replaced by the shorthand for “Ciudad de Mexico” — “CDMX”. Soon after, large-print signs in pink lettering could be seen all over town. They read: “Adios DF, Hola CDMX”.
Mexico City also earned several new rights and responsibilities. The mayor can now choose the city’s attorney general and its chief of police. Crucially, he also has more control over the city’s budget and can rely less on congressional approval for financial decisions.
The change also prompted an administrative restructuring intended to bring democracy in a city of almost 9 million a bit closer to the people. The city was subdivided into boroughs, each with somewhere between a few hundred thousand to two million people. Starting in 2018, those districts — whose number and boundaries could change — will elect their own local mayors and councils. These officials will handle numerous tasks, such as economic development and public works.
Diane Davis, a Harvard University professor and author of Urban Leviathan: Mexico City in the Twentieth Century, sees these moves as a push from the city’s political elite to carve out more independence. But she worries that the benefits for citizens are not guaranteed.
While electing neighborhood-level mayors and councils may be in keeping with the global trend toward decentralization, Davis cautions in a recent blog post: “The drawing of borders is always inherently political, and is not always progressive.” The creation of some districts that are richer and some that are poorer, she says, “may not produce urban policies that ensure equity and social inclusion for the city as a whole.”
As for the mayor’s new powers, Davis sees other motives. “It seems that a significant part of the reasoning behind this change … was to signal to the international community that the CDMX could take its place as a world-class, globalized city, ready to compete and collaborate internationally and with an official ‘mayor’ ready to participate in a global cohort of elite city leaders,” she says. “This may be good for foreign investors. But it may not be good for citizens.”
While the pros and cons of Mexico City’s political reforms are up for debate, one clear result was that Mexico City was free to draft and adopt its own constitution. Every state in Mexico has one. Turning Mexico City into the equivalent of a state meant that somebody in the city needed to pick up a pen.
It’s a job for which Mexico has a good reputation. “Mexico is a real innovator in the history of constitutions,” says Brodwyn Fischer, a University of Chicago historian. “The 1917 constitution was the first to guarantee social and property rights to people in rural areas. This effort in Mexico City is supposed to be an equally innovative move at the level of constitutional law.”
One goal was to enshrine some of the socially progressive decisions Mexico City leaders have taken that are at odds with most of the rest of the country. For example, abortion is available in the capital up to 12 weeks into a pregnancy, but is largely illegal in more than half of Mexico’s states. Same-sex marriage has been legal in Mexico City for a decade.
“The constitution is a battleground for many political forces in the country,” notes Alberto Herrera Aragón, Mexico director of Change. org. “That’s why the constitution is so important. It is going to politically define a city that is different from the rest of the country, and could be grounds for the rest of the country to follow.”
To write the constitution, Mancera agreed on a two-step process. First, Mancera would appoint a 28-person drafting committee drawn from a range of city residents with different backgrounds and expertise. This group would be supported by a technical staff able to translate ideas into legalese. During this phase, citizens like Francisco Fontano Patán could initiate petitions on Change.org for the drafting committee to consider.
Second, a 100-member constitutional assembly would negotiate and ultimately approve the document. Mexico City voters would elect 60 representatives to this assembly. The other 40 would be drawn from Congress, appointed by the mayor, or appointed by the president.
The drafting committee Mancera appointed came from a wide variety of backgrounds, a diversity intended to draw in ideas from a broad cross-section of society. Economists and legal scholars were joined by a telenovela actor, a Twitter star, a gender activist and an artist.
Citizens were encouraged to engage early and often. An online survey, which included sending pollsters out to parks and subway stations to reach people without internet access, yielded more than 26,000 responses from Mexico City residents.
City-sanctioned use of the Change.org platform was also a big success. Over the course of several months, nearly 280,000 people signed on to 357 different petitions for the drafting committee. Petitioners had a real incentive to push their ideas.
Those earning at least 5,000 signatures had their ideas sent to technical staff for review. Those with 10,000 or more signatures won the chance to formally present their ideas to the drafting committee. 50,000 signatures netted an audience with Mayor Mancera himself. Four public petitions made it to the mayor’s office. They included proposals to require public officials to disclose their financial holdings, protect animals, require good governance practices, and embrace “smart city” principles.
While less than 5 percent of the city’s population participated via Change.org — and those without internet access or comfort with using online platforms were largely excluded — the citizen engagment far exceeded the website’s targets. No one was more surprised by this than Change.org’s Aragón. “We don’t have a culture of formal participation” beyond protesting in the streets, he says. “But participating in formal processes for creating legislation is something we don’t do.”
Reactions from residents is mixed. Amparo Austin, a 69-year-old retiree, says changing the city’s nickname to CDMX was “silly,”but remains hopeful about the more substantive reforms. “It’s good to have a modern constitution,” Austin says. “I expect that the rules of the game will be respected, that the constitution would provide guidelines for people’s lives.”
Others are more suspicious of the motivations behind the changes. “It’s a dumb idea so that we pay more taxes,” insists 33-year-old lawyer Sara Hernández. “Politicians will put more money in their pockets and it won’t work.”
Apathy has turned up in other parts of the process. When it came time for voters to elect their 60 members of the constitutional assembly, just 28 percent of the electorate showed up at the polls.
“People’s interest is elsewhere,” says Antonio Azuelo, a professor at the National Autonomous University of Mexico. “The left complains that no social movement is behind this effort, and so they say there is no legitimacy. But legitimacy comes with time — we will measure success ten years down the road.”
Like any constitution, the final document approved this week is imperfect and subject to debate. Azuelo says the drafting committee, and later the constitutional assembly, were torn between two competing visions for what a constitution should be. There’s the minimalist model of the U. S. constitution, using relatively few words to state broad principles and leaving interpretation up to the courts. Or there’s the maximalist model “with rights for everything and everyone.”
The participatory approach Mexico City took virtually guaranteed that the maximalist approach would win out. The final 220-page text includes articles codifying rights for every segment of society: the disabled, LGBTI, street dwellers, migrants, Afro-descended Mexicans, the elderly, even animals, who are recognized as “sentient beings.” The tendency to spell everything out has been the trend in modern constitutions, from Brazil’s constitution of 1988 to the European Union constitution of 2004. Azuelo believes this is a good thing. “Personally,” he says, “I’m in favor of more rights rather than less.”
One right included in the final document is the so-called “right to the city.” An academic concept turned progressive legal principle, the right to the city hopes to strengthen efforts to protect vulnerable and marginalized populations in cities from the forces of real estate speculation, police brutality, economic exclusion and gentrification. It was recently acknowledged for the first time by the United Nations in an internationally negotiated document called the New Urban Agenda. Enshrining this right in a legally binding constitution that judges would refer to when deciding court cases may help establish legal definitions for what up to now has been a somewhat abstract concept.
Another notable debate surrounded the concept of “land-value capture,” or the ability for the public sector to claim a portion of rising real estate values resulting from public investments or regulatory decisions. The real estate industry lobbied hard against strong language on this front. In the end, developers will be required to pay “impact fees” to mitigate the effects of new construction, but won’t be subject to a more comprehensive value-capture mechanism.
For the last four months, the constitutional assembly has been negotiating on dozens of issues like this, going through the draft constitution article-by-article. Diane Davis says the overall process has sparked real public dialogue.
“The drafting process does seem to have provoked vigorous debate — including on important questions of how far and in what form the national government should involve itself in CDMXaffairs,” says Davis. She called a late version of the constitution a “highly progressive document” that could be a model for Mexico and Latin America. “The article-by-article approval process also seems to have been an interesting way to create substantive public debate on relatively narrow policy issues.”
Fontano agrees, even though the constitutional assembly stripped out the part of his parks proposal referring to the international standards. Still, he’s happy to see that the Carta Magna notes the importance of adding and maintaining “green spaces” to the city. The language might not be there if he hadn’t suggested it. “It’s important,” he says, “for people to get involved in creating the city they want.”