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March 27, 2004
Fixing the Broken
System
By Richard
Baldwin/HispanicVista.com
Just after writing my last week's article
(The System is Broken!), our president,
Vicente Fox, announced that he was going
to send Congress proposals "to
guarantee Mexicans an efficient system of
public security". Among his
proposals was to introduce the
presumption of innocence into our
constitution. He is also talking about
open to the public trials with the judge
in view. Well! Two out of three isn't bad
– I’ll keep the suggestions
coming.
I would hope that
this effort goes better than the ill
fated and advised "fiscal
reform" that died last year. But I
wonder if the administration has really
thought out this far more complex reform.
In the prior
article, I pointed out the difference in
the forms of testimony between Code Law
and Common Law. Fox also points this out
the total reliance of "paper"
that is the only thing that the judge
sees. This gets down to the very bedrock
of the legal system.
I remember appearing
in a civil (mercantile) law case in which
I was part of (an actor). Both sides
stood in front of the beat-up desk of the
court clerk, on the side of his desk was
a court stenographer manning an old
manual typewriter, furiously trying to
keep up with what was being said. None of
that fancy shorthand or audio recording
stuff here! Remember that no judge was to
be seen. He would only review the papers.
And we could only hope that what the
judge did see resembled the testimony.
The opposing lawyers
stood shoulder to shoulder, reading from
the official civil laws. Each would read
something and the other would read
something that was completely different.
And it went back and forth for an hour.
No one could agree on what the law was
saying in regard to this case. And yes,
they were reading the same book! Long
before the judge was required to make any
decision, the case was settled out of
court. But in reality, we were trying to
settle a law case with little bits of
paper.
But to see how
important these little bits of paper are
to the lives of Mexicans, here are three
examples:
The Mexican
constitution guarantees the right of
education through high school to all
citizens. But since there are 5 million
Mexicans without "official"
birth certificates, these people, the
ones most in need of basic education,
will not be accepted by our schools.
Common Law provides alternatives (human
testimony, and testimony of midwives,
etc.) to overcome this problem. But not
Code Law. Little bits of paper. In
addition, the charges for official birth
certificates are beyond the means for
many of our people. The book fees and the
required school uniforms are not provided
for in the constitution. And this is to
say nothing about needing to apply for a
visa for travel later in life, or even to
participate in our National Health
Service (IMSS).
To quote Marcela
Gomez Zalce, a local news columnist here,
"If you want to open a business, get
a license plate, a telephone line or
electricity, you need 750,000
papers". To say nothing of what it
takes to prove you are a Mexican citizen.
Now let's move into
criminal law here. The Mexican
constitution clearly prohibits torture by
the police to gain
"confessions" to crimes. And in
fact states that the courts will not
accept such "evidence". But, in
fact, it is widely accepted by the courts
here as good "evidence" and
cases are indeed decided on this type of
testimony daily here. I wonder what would
happen if juries would be passing
verdicts here?
A few years ago, our
constitution awarded Mexican citizens
living abroad the right to vote in
national elections. But no
"enacting" procedures were ever
set up by Congress to implement the law.
They are still trying.
Again, as Mr. Fox
points out, our law system is more
interested in little pieces of paper than
making the intent of the law workable.
Common law is based more on intent and
precedence.
But be aware, this
reform is not a simple thing that can be
fixed with a Band-Aid or two. And it is
not something that can be done with empty
promises (like solving the Juárez
murders) either. And it will also tend to
step on a lot of "protected
toes" in the process.
Good luck, Mr.
President.
__________________________________________
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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