Municipal Real Estate: Subject to the Approval of the Local Legislature?

The legislative and historical development of Article 115 of the Political Constitution of the United Mexican States reveals that the Free Municipality is the foundation upon which national society is built. The legislative process of its 1999 municipal reform highlights the will of the Reforming Body in favor of consolidating its autonomy, as it releases it from certain interference by State Governments and expressly configures it as a third level of government, rather than as an entity of an administrative nature, with its own and exclusive sphere of government and powers, all of which leads to determining that the interpretation of the current text of Article 115 must make municipal strengthening tangible and possible, in order to give material and formal effect to the Free Municipality, without this meaning that those legitimate and expressly constitutional forms of interference retained by the State Executives or State Legislatures should be ignored.

In light of the foregoing, the text added to subparagraph (b) of Section II of Article 115 of the Constitution must be interpreted restrictively, in the sense that only such interventions by the Local Legislature in municipal activities are permissible, as this allows the principle of autonomy to be realized and prevents the legislative exercise carried out by the Permanent Constituent Assembly from being rendered null and void, but rather consolidates it. This means that the aforementioned subparagraph only authorizes Local Legislatures to specify the circumstances under which acts relating to municipal real property will require a qualified majority vote by the members of the City Council themselves, but does not authorize them to set themselves up as a more binding and indispensable authority for the execution or legal validity of such acts of disposition or administration, which runs counter to the spirit of the constitutional reform and the objectives it seeks to achieve.

Therefore, if any state constitution, law, or regulation subjects the disposal of municipal real property to the approval of the local legislature—that is, if it empowers the local legislature to authorize the sale of municipal property, the encumbrance of such property, or the granting of concessions by municipal councils without the authorization of the State Congress—it must be declared unconstitutional.

Author: Manuel Eduardo Vázquez Estrada, Lic.