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March 20, 2004
Inside Mexico
The System is Broken
By Richard
Baldwin/HispanicVista.com
Television watchers
in México have had a real treat recently
in watching opposition party members in
films taking suitcases of what appears to
be bribe money. This may be a sinister
plot to discredit a political party by
their rivals, or it might be real. But it
sure is entertaining. One comes to the
conclusion that our next federal election
will be a nasty one because it is still
three years away. Something in common
with our cousins up north this time.
In this case, these
were not elected officials, because if
they were, they would be immune to any
prosecution while they are in office. A
state governor a few years ago was
blatantly taking bribes and deeply
involved with drug trafficking. He
remained in office until the last day of
his term . . . then he ran. It took
more than a year to find him, and by that
time most of the evidence against him had
disappeared. The head of the notorious
national oil company union was involved
in a big time scandal of transferring
union (workers money) illegally to what
was then the ruling party. But he was
also a member of congress and therefore
immune.
But one thing is
clear: the TV stations are doing a better
job than our federal government. In one
case, it was the PAN (the ruling party)
that turned over films for airing on TV.
Could it be that our legal system does
not work?
"Immunity"
is unheard of in the US. There are
provisions in place to make political
attacks remote, but if an elected
official is convicted of a crime, he is
punished. Just recently, a congressman
from a western state was convicted of
drunk driving and killing a man. At the
moment of his conviction, he was out of
office and in prison. Not even the
president of the US is immune from the
law. Two presidents have been impeached
(indited), but acquitted in the actual
trial. And you know what? The country
just kept rolling along as if nothing was
going on.
But here in México,
not only do we have immunity for
politicians, but we operate under the
Napoleonic Code, that assumes that the
accused is guilty until proven not. Just
the reverse of Common Law practiced in
the North. Common law assumes that the
state has unlimited power compared to the
common man, and forces on the state the
burden of proof. It also requires actual
conviction by a "jury of his
peers".
The Napoleonic Code,
created by its namesake, was a
simplification and codification of the
legal system that was founded by the
royalty (that lost their heads). But it
must also be remembered that Napoleon was
an empire builder; the empire was
foremost in his mind when he formulated
this code, not the common man.
There is a profound
difference between the two systems that
many do not recognize. Common law is
based mainly on custom and precedent,
while code law is based more on
legislated law. The common man is
secondary in the latter, while he is the
foundation of the former.
The jury system was
devised because of mistrust of
government. The judge enforces the rules
of trial, but it is the jury who makes
the final decision.
Testimony is
generally more important than anything
else. It is assumed that those that
testify are telling the truth (under
oath) and lying under oath is very
serious. In México, it is assumed that
everyone lies. Under common law, an
agreement on paper is only a record of
the actual agreement between two parties.
Just the reverse under code law. Note
that the recent convictions in the Martha
Stewart trial were based more on a
perjury issue (lying) than anything else.
If México is to
going to gain credence to its people and
the world as a country ruled by
functional law, here are a few
suggestions:
· Make all trials
public and with the judge in view. As it
is now, testimony is given to the court
clerk and passed on later to the judge
that no one sees. Lot's of opportunity
for corruption there.
· The idea of some
sort of jury system as a means of balance
should be considered, or don't we trust
our own people?
· Reverse the
presumption of guilt to make justice
fairer for the people.
Or should we just
turn law investigations over to TV?
_____________________________________
Richard N. Baldwin T., a
HispanicVista.com (www.hispanicvista.com)
contributing columnist, lives in
Tlalnepantla, Edo de México E-mail at: R1041643422@aol.com
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