The Justice Debate in Mexico: The Reform and Future Challenges
One of the most dramatic reforms to take place in Mexico in recent years has been the overhaul of the judicial system through a major constitutional reform passed by the Mexican Congress in late February of 2008. The wide-ranging reforms include adopting public "oral trials" for criminal cases in place of secretive paper trials, establishing the presumption of innocence, and overhauling the system of public defenders. On May 20, 2008, the Mexico Institute hosted a seminar with some of Mexico's top judicial experts, who have been deeply involved in the constitutional reform, to take a look at these changes, their implementation, and their implications for Mexican society and democracy. Andrew Selee, Director of the Mexico Institute, affirmed that such reform is a product of the ongoing transition to democracy, economic growth, and the fight against organized crime in Mexico. Javier Tello, Chief of Staff at the Embassy of Mexico, introduced the speakers as a group of experts that has worked together to make justice reform possible in Mexico and created the blueprint for the reform.
Ernesto Canales, Founding Partner of Canales y Socios Abogados, S.C., commented on the work of the organization Renace in Monterrey, Mexico, an NGO dedicated to assist people of limited means to have a fair trial. Mr. Canales emphasized that these are the people who are most disadvantaged in Mexico, since they lack the resources to "make the system work." He noted that 50 percent of prisoners in Mexico are accused of stealing less than one hundred dollars and end up serving more than one year in prison. Mr. Canales highlighted the role of Renace in addressing three major challenges: the limiting of discretionary powers used in investigations, the promotion of formal processes, and the avoidance of preventive prison. Mr. Canales concluded that the criminal system requires a total reform, implemented in all 32 states, to make a homogenous juris corpus in order to ensure the confidence and trust of the public.
Ana Laura Magaloni, Professor at CIDE, stated that the reestablishment of public order has to occur hand in hand with a profound reform of institutions of the criminal justice system, and emphasized that delaying such reform was neither ethically correct nor politically strategic. Therefore, the main challenge to the Mexican government is finding a balance between the war against drug trafficking and gradually implementing criminal justice reforms. Dr. Magaloni argued that efforts to do so should focus on the state level, where 95 percent of the criminal reports are filed. Dr. Magaloni highlighted three main public policy objectives: professionalization of criminal investigations, increase in due processes, and reducing arbitrary decisions.
Layda Negrete, Lawyer and PhD Candidate at the University of California, Berkeley, displayed a video to illustrate the shortcomings of a trial process in Mexico. Among the many characteristics of the procedural system in Mexico illustrated in the video, Ms. Negrete pointed out that the evidence is usually generated out of the trial, and that once the prosecutor presents the evidence, it becomes unquestionable. She emphasized that the basic right to challenge the evidence is not possible in the Mexican court room, given their immense power of attorneys and existing lack of accountability.
Cristian Riego, Academic Director, Centro de Estudios de Justicias de las Américas (CEJA), considered the main challenge for the judicial reform throughout Latin America to be political. He noted that the judicial system is weak and politically irrelevant in most countries in the region. However, these institutions in Mexico have become a key component of the authoritarian regime, and have the means and network to operate at all levels of government. Based on the experiences of other countries in the region, Mr. Riego suggested that is necessary to generate competitiveness among the prosecution agencies by rewarding professionalism and transparency.
Miguel Treviño, Editor of Reforma and Professor at Monterrey Tec, noted three main features of Mexico's reality that set the scenario for the implementation of the justice reform. The first is population; Mexico has two or three times the population of most countries in the region, which demands greater political effort, coordination, and policy making activity. The second feature relates to timing. Given that the government's current priority is the fight against organized crime, it has become a challenge to convince the President that reform of the justice system is not only possible, but convenient. Third, the main actors – the legislative branch, the executive branch, and civil society – must involve each other in the debate to communicate their needs and effectively transition from one system to another. Mr. Treviño suggested that the implementation of the reform could be Calderon's major legacy if he chooses to make it so.
Enrique Ochoa, Professor of Constitutional Law at UNAM, pointed to the wide political endorsement of the reform, noting that 462 congressmen and 73 senators voted in favor of the legislation, representing 98% and 74%, of the Chamber of Deputies and Senate, respectively. In addition, 21 of the 31 states have approved the constitutional reform thus far, without any state voting against it. However, it is still not clear if it will be possible to secure a multi-party approval, particularly given that there are important political actors betting on the reform's failure. Mr. Ochoa identified the state level reform versus the federal level reform as one of the main challenges, as well as the potential monetary cost of the reform. Mr. Ochoa stated that Mexico has an important incentive from the Mérida Initiative to improve the rule of law and learn from the U.S. system of justice.