The judicial system in Mexico (part I)

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I co-wrote this series of articles in 2009 with my mother, N.J. Blake, after being awarded an investigative journalism grant by the AVINA foundation. They were originally published on openDemocracy.net.

 

The words “judicial reform” imply change; a system that has been struggling will be transformed into something new and improved. This sounds simple enough, unless of course one is talking about Mexico, where nothing is ever as it seems, and it’s certainly never simple. This past year Mexico has seen the words “judicial reform” bandied about in daily headlines, used and abused – as a political weapon, a punch line, a dubious promise, and finally, a daunting plan.

As long-time observers of the life and times of Mexico, we were not surprised by the media bombast surrounding the passage of President Felipe Calderón’s constitutional reform package in the summer of 2008. This was a landmark achievement for Calderón’s administration – one that had eluded his predecessor, Vicente Fox – but is a direct result of the current administration’s increasingly bloody battle against organized crime and the police and judicial system’s inability to fight it.

Since la política is second only to futból as a national sport and Mexican cynicism regarding politicians has by now become visceral, the commentary by pundits and public alike was florid. Though there may well have been a muffled voice or two of reason in the melée, the loudest were shouting hysterical epithets: ‘draconian’, ‘racist’, ‘regressive’, ‘aberrant’,’nothing short of the dismantling of human rights.’ One went so far as to label the legislation ‘the Gestapo laws’. The voices came from all sides, politicians, professors, journalists, and of course, lawyers, who likely have the most to lose.

We couldn’t help but notice that all these derogatory terms could, should and have been applied to the system as it is now. Medieval, fatally flawed, hopelessly dysfunctional, archaic – all have been used to describe this rule of law whose reform was viewed by some as worse than the dire status quo. Anywhere else an attempt to reform such a system would surely bring people to their feet cheering. But not here, where exchanging the devil you know for the one you don’t can be taken quite literally and bring with it all manner of alarming consequences, curses and catastrophes.

As the rhetoric escalated, so did the misinformation and confusion. Journalists and talking heads around the world served up differing sets of facts about Mexico’s mysterious judicial system, trying to explain, in the simplest terms, the meaning of this reform. Descriptions of civil versus common law traditions, inquisitorial as opposed to accusatorial, the presumption of innocence, due process and so on, were all presented as positive change for Mexico. Which they would be – but the Mexican Constitution already provides these guarantees and has since 1917. Even the right to a jury trial is provided: according to Article 20, Section 6, the defendant “shall be judged in a public trial by a judge or jury of literate citizens.” That it hasn’t turned out this way, that what was meant to be oral and public instead became written and secret, is just another result of Mexico’s anguished history.

This reform isn’t about imposing an enlightened rule of law on a backward land, it’s the much more complex task of exterminating what grew like a tenacious fungus in its place. And to understand how that happened, one has to understand the forces that have long shaped Mexico’s fortunes: the Catholic church, the caudillos, the labor unions and the interminable meddling of foreign powers interested in everything from extracting oil to building military bases. In the words of that quintessential caudillo, Don Porfírio Díaz: “Poor Mexico, so far from God and so close to the United States.”

When the Mexican Revolution exploded in 1910 with the waffling of Don Porfírio’s commitment to yet another term, it spread like brush fire with a staggering number of factions flaming up – conventionalists, constitutionalists, agrarian reformists, bandits and State governors with an itch to fill Don Porfírio’s shoes. In the center of the whirlpool stood the small figure of Francisco Madero, a wealthy landowner with a zeal for justice and a fatal desire to please everyone. He was the first of Mexico’s 20th century presidents to leave office in a box. Huerta was behind the murder of Madero, Carranza rid himself of Huerta, Obregón eliminated Carranza, Calles (and in the tradition of strange bedfellows, the Church itself) masterminded the assassination of Obregón and finally, this time without gunfire, Cárdenas rid himself of Calles. Madero lasted a mere two years and the lessons learned were what Díaz had said all along, that Mexico wasn’t ready for democracy. Battered by 300 years of colonial occupation, bloodied by the wars of the 19th century, Mexico was starting the 20th century again ensnared in a battle for its soul.

Since the Catholic Church was willing to do anything to retain its wealth and power, it would take leaders with even fewer scruples to finally break its stranglehold on Mexico. Enter Carranza (Don Venus), Obregón (El Manco de Celaya) and Calles (El Turco) – an unholy trinity of powerful dictators with an avid hatred of the Church. Their anti-clericalism infuses every article of the Constitution of 1917, a passionately nationalistic document, progressive, liberal, activist, similar to the United States’ Constitution in its declaration of human rights, national sovereignty and a division of powers. But whereas the U.S. Constitution was designed to limit government, the Mexican constitution was spewed onto paper in defense of a beleaguered, struggling people and insists on social activism, envisioning a government obligated to promote human rights and responsible for the social, economic and cultural well-being of the nation. In other words, it promised the impossible, and as a result has been all but ignored in the ninety-two intervening years. The Church fought this ‘document born of Satan’ with all the tools at its disposal – excommunicating landless peasants who had accepted government land grants, refusing to perform baptisms, marriages, last rites and unleashing ‘God’s soldiers’ in the three year Cristero War (1926-1929) which left over 70,000 dead. The horrors of this war sealed the country’s Faustian fate; the supremacy of State over Church came at the cost of democracy. The State’s triumph was dependent on the development of a monstrous system of patronage, corruption and violence that has served generations of politicians, police and union leaders very well indeed.

By the end of the Maximato – Calles’ 12 years of power both in front of and behind the scenes – the Church had been divested of all but its nearly-forgotten spiritual role and modern Mexico was beginning to emerge. The political party formed by Calles that would become known as the Partido Revolucionario Institucional (PRI) stabilized the country and in so doing, managed to steer the course of the next seven decades without a mutiny. By the year 2000, when it finally came to an end, Mexico was the longest-living one-party state in existence. Perhaps it wouldn’t have survived at all without it, but once again, Mexico was burdened with an onerous and ubiquitous master of its fate, one who used secrecy and manipulation to control freedom of expression and the administration of justice. Balazos were replaced by dedazos as each succeeding Mexican president left office – finally, on his feet rather than feet-first – after appointing his successor.

The PRI era has been called the “perfect dictatorship” not only because of its mostly peaceful and non-violent reign (with the painfully glaring exception of Tlatelolco in 1968 and the still-hazy “dirty war”), but also because of its ingenious methods of protecting its power. By mid-century, the PRI may not have physically shut down a small independent-minded newspaper – it would just make sure there wasn’t any paper to print it on. In a country where everyday items like receipts, change, trashcans, and to-go cups are inexplicably elusive, it may not have surprised anyone all that much to be told there was simply no paper or no ink. Ni modo.

Meanwhile, the original 1917 Constitution remains the supreme law of the land, with its very own holiday, but has been amended ad infinitum. It not only offers what it can’t deliver, it has become, in the words of any number of lawyers, one of the causes of the poverty and injustice that characterize Mexico instead of the gilded guarantor of Mexico triumphant. It has been supplemented with state codes, federal codes and municipal codes giving the citizenry a bewildering number of offenses to commit – an estimated 10,000 exist in the Mexican penal codes. And this in a land where laws and regulations are generally treated as recommendations – or dares – and the spirit of the law trumps the letter of the law every time. That, in a nutshell (an appropriate receptacle), is how Mexico got a constitution it didn’t enforce, but now plans to reform.

While trials were once meant to be open and oral, an opaque system has developed in which the pre-trial proceedings conducted by the prosecutor have replaced the actual trial. The prosecutor also carries out a unilateral investigation that generally leads to a de facto verdict; the judge who delivers the final verdict and sentence will likely never lay eyes on the defendant. The myth that one is guilty until proven innocent under Mexican law does have a seed of truth in practice, since pre-trial detention is usually quite long. Approximately 40% of inmates in Mexican prisons are awaiting trial (according to 2006 report by the Council on Hemispheric Affairs). Unsurprisingly, many crimes never even get this far in the judicial morass, since up to 77% of victims do not report crimes committed against them (according to the Instituto Ciudadano de Estudios sobre la Inseguridad, A.C., ICESI).

As a case in point, in the women’s prison of San José el Alto, a town of 8,000 in the small central state of Querétaro, there is an inmate, Jacinta Francisco Marcial, sentenced to 21 years for kidnapping six agents of the Agencia Federal de Investigación (AFI) on March 26, 2006. Though this sounds farcical – Small Indian Woman Overcomes Six Members of Law Enforcement – her incarceration is a tragic reality.
Doña Jacinta is of indigenous Otomí descent; Spanish is her second language, but she was never offered an interpreter by the police to help them explain the charge against her. The only evidence of her guilt is a newspaper photograph showing her amongst a crowd of townspeople who surrounded the agents, and the agents’ written testimony. Despite the absurdity of the charge, she remains jailed while her case is being appealed – to the same judge who handed down her guilty verdict and before whom Doña Jacinta never appeared.

Doña Jacinta’s case highlights the primary flaws of Mexico’s dysfunctional judicial system such as lack of transparency and accountability, as well as a fundamental absence of respect for individual rights. The incident that led to her two-decade sentence took place in a small rural community in Querétaro called Santiago Mexquititlán nestled in the Sierra Madre Occidental, the Mexican vertebrae of the mountainous spinal cord connecting the Rockies to the Andes. Allegedly, the six AFI agents arrived at the town’s tianguis (market) in plainclothes and began destroying merchandise, most of it pirated DVDs and CDs, without any explanation to the indignant vendors. They surrounded the agents in protest and someone photographed the scene, with Doña Jacinta amongst the perplexed onlookers. The matter was settled the same day with an agreement on the part of the regional head of the AFI to reimburse the vendors for the damages caused by his unidentified agents. It wasn’t until August 2006, five months after the incident, that Doña Jacinta and two other women were arrested and taken to the capital city of Querétaro. What happened in those five months remains secret and unexplained; could this have happened under the new system of open trials? Not likely, as it would have been quite apparent that Doña Jacinta does not speak Spanish fluently, and the AFI agents would have been forced to publicly explain the superhuman strength this little grandmother had used to subdue and kidnap the six of them. Perhaps even a public demonstration would be in order.

What Mexico is embarking upon is akin to ploughing the sea. But faced with countless cases like Doña Jacinta’s, being on the losing side of the drug war and hindered by a broken penal system, President Calderón has played his hand in the most utilitarian way possible: increasing the power of the state and checking this power with transparency. Mexico may seem farther from God than ever, but fortunately for Calderón and his ambitious agenda, she has never stopped believing in miracles.

 

The project that is the source of this piece was the winner of an investigative journalism grant from AVINA. The concepts, opinions and other aspects of the content of the investigation are the exclusive responsibility of the author and/or the publisher.