The 5th of February is Mexican Constitution
Day, a federal holiday in to honor both the original 1857 and the later
1917 constitutions.
In a speech our new president Felipe Calderón both praised our
present constitution but also called for modernization of the document
that is the foundation of our government. It has been amended repeatedly
before, but most prior changes occurred under the one party rule of the
past in which the president effectively ruled by decree. Now things are
different with a multi party government. Welcome to an effective
democracy.
The original constitution was based on the Napoleonic Code, which
while codifying the original Roman Code, was designed to perpetuate and
protect the rule of a dictator. Almost all European countries that use
this code as a legal base have modified it to include the needs of a
modern legal system. But not so with México, which still remains in the
19th century with its constitution.
One of the prime absurdities is the inclusion of "presumption of
guilt" instead of "presumption of innocence" as is the foundation of
Common Law. Even France, the creator of the Napoleonic Code system, has
changed to the presumption of innocence. China is one of the few others
that have presumption of guilt.
In addition, Mexican legal scholars point out many conflicts that
exist in the present document, such as permitting the establishment of
monopolies in one place and forbidding monopolies in another place. There
are conflicts on such basic things as not permitting torture. While México
has signed the international anti-torture treaty, the implementation of
this rule is lacking. But much to Calderón's credit, he is putting the
legal reform at the top of the list.
Also of interest is that two days later, Amnesty International
presented a report that highlights flaws in the Mexican legal system. One
of the strongest criticisms was from Amnesty International Spain. Their
target was the lack of presumption of innocence in the Mexican legal
system. Their report said that the system is structured so that "the whole
world is guilty, especially if you are poor". The fact that in 2004, only
82 lawyers with the required qualifications to represent our 15 million
indigenous people further illustrates the need of serious reform.
Amnesty International also expresses concerns of the conduct of our
ongoing drug war that torture and other illegal mistreatment of prisoners
is going on. We must remember that even in a war (as México is now in),
the law and its enforcement must respect constitutional law. If the law
does not respect the law, we have nothing left but chaos. Along this line,
the Mexican Supreme Court has voted to conduct an investigation into the
San Salvador Atenco police rape and pillage event in 2006. That will be
extremely interesting because some of the roots of this event go very high
politically, even to the level of a very powerful governor.
And, of course, the more recent Oaxaca episode is still awaiting
resolution. Although the shooting has lessened, this is another event that
has roots going up to a governor. Another simmering case involves the
author of a book exposing a wide spread pedophile racket who was illegally
arrested with instructions to the arresting police to have her raped while
in prison. It is fortunate that the last part of that plot failed, but
again, this goes right up to yet another governor.
It is of note that in some northern states open "oral" trails are now
being conducted, while most of the country relies on closed trials where
only written testimony is considered. Holding secret trials behind closed
doors is not the way to give confidence to the legal process to the
people. But that is the way it is now.
Yes, indeed, we have a lot of things to get into, but to really solve
the basic problems, deep reform is necessary. The Mexican people need a
government that they can trust . . . one that can address their problems.
But the glimmer of change is that now the various political parties
are at lest seriously talking about constitutional reform. Most
encouraging is that so far, this has not turned into a "sweep it under the
rug" event. It is out in the open.
With a 58% approval rating, Calderón is in a position to try to do
something very important for México. It is also noteworthy that his party,
the PAN has the highest national approval rate between the various
political parties.
Maybe there is a chance or real reform here.
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Richard N. Baldwin T., a HispanicVista.com (http://www.hispanicvista.com/)
contributing columnist, lives in Tlalnepantla, Edo de México. E-mail at:
R1041643422@aol.com
By
Richard N. Baldwin T. /HispanicVista.com