Guest Column
Can Mexico reform its laws?
- Can Mexico reform its laws?
- By Kenneth Emmond
- The Herald Mexico-El Universal
- October 9, 2006
Talking about reforming Mexico's laws has been a popular parlor game since the 1990s. Some reforms have actually been passed, but given past levels of acrimony in the divided Congress, it's hardly surprising that more was not accomplished.
The list of needed reforms could fill this page — not a surprise, either, in a nation groping its way toward democracy. A few examples that come quickly to mind are tax law, labor, agriculture, energy, the judiciary, the legislature, health care, and education.
Some politicians, including President Vicente Fox, say that even the Constitution needs an overhaul.
There's been solid progress updating the electoral law, but the uproar that followed the July 2 cliffhanger election makes it clear that more changes are needed there.
It's realistic to hope for some reforms in the newly-elected Congress. Both President-elect Felipe Calderon's National Action Party (PAN) and the Institutional Revolutionary Party (PRI) want to be perceived as being reform-minded. Between them they can muster enough votes to pass any legislation short of a constitutional amendment.
The Revolutionary Democratic Party (PRD) is already at work drafting a set of reforms on its own. Like the PAN, it hopes to gain the legislative support of the PRI. With the second largest caucus in the Chamber of Deputies and the Senate, it too could get its bills passed if the PRI helps.
While it's true that 70 years of corrupt government under the "old PRI" eroded many institutions, in other cases the laws are simply obsolete.
Not all abuses are embedded in poorly structured laws. Sometimes the problem is more basic: the law is simply winked at or is misapplied.
The most disturbing concern in this respect rests with the judiciary. People will have little respect for the law, no matter how skillfully it's crafted, so long as they believe that many judges accept bribes. That belief, though unproven, is almost universal.
A sound legal system depends above all on the personal integrity of judges. Still, reforms can go part way towards discouraging abuses.
One of the most important measures would be to open all court procedures to the public. So long as the public doesn't know what goes on in a courtroom, the way judges make their decisions will be suspect.
Another way to strengthen courtroom integrity would be to narrow judicial discretion. Discretion allows a judge to take into account mitigating circumstances. However, in a system where discreet transfers of funds to judges are possible, discretion can open the door to abuses. At its worst, it can convert defense lawyers into mere negotiators.
If the discretion available to judges is restricted, temptation will be correspondingly curtailed. It would be further dampened by imposing severe punishments and public disgrace on all guilty parties.
A requirement for more written decisions would be helpful. A large part of the public mistrust of judges stems from astonishing — though perhaps legally sound — verbal decisions in which judges dismiss what the public believes should be open-and-shut cases with a cryptic statement of "insufficient evidence."
Another legal anomaly is the amparo as it's currently applied. "Amparo" doesn't translate precisely into English, but it's close to the concept of "injunction" in English law. By securing an amparo, a defendant gains an injunction against the courts under which he cannot be imprisoned unless he's found guilty.
Getting an amparo requires court procedures and, perhaps, something to encourage the presiding judge to look on it favorably. Like an expensive automobile, it's theoretically accessible to all, but in practical terms it's available only to well-heeled defendants.
Under Mexico's Civil Code, the accused is presumed guilty, which means he must prove his innocence. He remains in prison until he provides the necessary proof — unless he can get an amparo.
To democratize the amparo, the law governing its use must be vastly simplified and it must be automatic and free of charge to all defendants.
One of the worst insults to Mexican law is the "fuero." It effectively prevents the justice system from bringing charges against elected officials.
The ostensible purpose of the fuero is to protect legislators from frivolous legal charges. However, in a nation notorious for corruption among politicians, charges might be far from frivolous, and so it becomes a legal firewall insulating from justice those most in need of being brought to account.
An official protected by the fuero can only lose it when his term of office ends, by resigning his post, or through a majority vote in the legislature in a process called the "desafuero." Desafuero motions are often defeated, especially when the political party of the accused is in the majority.
The fuero makes a mockery of justice, especially when there is compelling evidence of corrupt or criminal activity. It has no place in a nation with widespread political corruption and should be expunged from the law.
Legal reforms — and better justice for Mexicans — will remain at the talk stage until politicians have the will to make the needed changes, and judges are seen to be honest and disposed to interpret the law more transparently. We'll find out in the coming sessions of Congress whether Mexico has reached that stage.
- Kenneth Emmond is a freelance journalist and economist who has lived in Mexico since 1995. Kemmond00@yahoo.com
- The Herald Mexico-El Universal article at: http://www2.eluniversal.com.mx/pls/impreso/noticia.html?id_nota=35211&tabla=articulos
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