The Right to Freedom of Association in Mexico

José Juan Anzures Gurría

Universidad Panamericana

The Mexican Constitution recognizes freedom of association in article 9, but it does not define it. In more than one hundred years of the Mexican Constitution, this article has not been modified and there is no secondary law regulating it. In fact, its content and scope has been incipiently developed by case law. In what follows, I attempt to explain the scope of freedom of association according to the understanding of the Mexican Supreme Court.

The Mexican Supreme Court has not followed the traditional doctrinal division of this freedom which differentiates between a positive dimension (such as creating, joining, and remaining in an association) and a negative one (such as the right not to create, not join or leave an association). Instead, with no apparent reason, the Mexican Supreme Court has lumped associational conduct into three different dimensions: the first refers to the right to associate, which, according to the Court, includes the right to create an association or join an existing one; the second refers to the right to remain in or leave an association; and the third refers to the right not to associate, which also includes different conducts.

The right to create associations consists of the right of every person to create a legal entity without any interference from third parties, mainly from the public power; this implies the omission of any type of reprisal, prejudice, threat, or sanction. A curious fact is that although the right of association is an individual right, its exercise is collective as it requires the will of other persons, since no one can associate alone or with themselves.

The right to join an already constituted association is a right held before the State. Such a right protects the individual against any conduct of the authority that would prevent him/her from joining a specific association, but this does not mean that the individual has a subjective right to join a specific entity. The association itself may legitimately deny a person's claim to join it. The right protects the possibility of the individual to choose to join the association of their choice from a wide range of associations, but if an association does not admit an applicant, they must have the possibility to turn to the other existing associations.

The right to remain in an association has been commonly understood in a negative sense, that is, the right not to be expelled from the association. The Supreme Court has stated that the obligation imposed on an associate to resign from one association to join another constitutes a violation of the exercise of the right. In another decision, the Supreme Court stated that a worker cannot be expelled from a labor union for having retired; the fact that a union member is no longer an active worker does not mean they cannot remain in the labor union to which they have belonged. Of course, a member can be expelled from any association if he or she has violated the internal statutes, since it is considered a type of sanction.

Freedom of association also includes the right not to associate. This dimension, in turn, includes several behaviors, such as the power not to create an association, not to join an existing association, or to leave the association of which one is a member. The power not to create an association translates into the prohibition of the State from engaging in any conduct that imposes on the individual the creation of an entity; in other words, no one may be forced to create an association against their will.

The right to freedom of association also protects the right of any person not to join an association against their will. For many years in Mexico, various legislations contemplated mandatory membership in different associations. In 1995, the Supreme Court recognized that mandatory membership in Chambers of Commerce was contrary to the right to freedom of association. In 1999, the Supreme Court also determined that single unionization provided by law violated trade union freedom.

The third dimension of the negative freedom of association comprises the right of every member to leave the group when they so desire. The act of leaving is usually an action on the part of the member when they are no longer comfortable with or do not share the direction or decisions being made within the association. The right of withdrawal may be limited by compliance with certain statutory requirements. The partner may leave the association without observing these requirements, but in doing so, they may be in breach of contract and be subject to legal action against them.

Freedom of association also protects the association itself. From the moment an association is created, it is born with its own independent life and has the power to develop and function as a new subject, distinct from the persons who created it. This area of protection has been referred to mainly in Germany and Spain as the collective dimension of the freedom of association. In Mexico, Article 9 of the Mexican Constitution does not expressly recognize the protection of associations as a dimension of the freedom of association. However, other constitutional articles do recognize the freedom of certain types of associations. Article 41 provides for the right of self-organization and self-determination of political parties, by virtue of which the authorities may only intervene in the internal life of such institutions under the terms established by the regulatory standards and and secondary laws. Moreover, Article 130 states that the authorities may not intervene in the internal life of religious associations.

In the case law, some rulings recognize this collective dimension of the freedom of association. In 1976, the Supreme Court decided that the autonomy of the association, (referring to the labor unions) ".... is interpreted as the capacity of organization, of creation of the statute to which its members will be bound, of administration of its patrimony, of operation and of external activity for the achievement of its immediate and mediate purposes". Similarly, in 1999, (decision no. 43/1999), the Supreme Court stated that the workers' right to unionize comprises a right to associate and "a collective right, once the labor union acquires its own existence and personality". The resolution explains the content of the individual dimension but omits to explain the collective dimension of the right.

Notably, the power of self-organization of associations does not mean that they can act outside or against the rule of law. Organizational autonomy may be limited by the type of association in question, or by any particular condition it may have. In the case of political parties, for example, their internal organization must be democratic.

To conclude, freedom of association has the particularity, like no other right, that its different forms of exercise often clash with each other. The right to join an association usually conflicts with the association's power to decide on its members, while the association's right to expel a member frequently conflicts with his or her right to remain.

José Juan Anzures Gurría is Professor at Universidad Panamericana.

Suggested citation: José Juan Anzures Gurría ‘The Right to Freedom of Association in Mexico’ IACL-AIDC Blog (17 October 2024) The Right to Freedom of Association in Mexico — IACL-IADC Blog (blog-iacl-aidc.org)