By Juan Manuel Henao
Thomas Hobbes describes the importance of a social contract between man and government in his book The Leviathan. The contract compels individuals to give up some personal rights in return for peace and security under the rule of law. Democracy is strong when government sticks to its part, but grows weak when the government fails to uphold its end of the bargain.
In Mexico, many observers worry that the social contract is almost broken. According to the public policy analysis center Mexico Evalua, impunity remains an endemic problem: eight out of ten criminal cases go unpunished in Mexico – and the number rises to nine out of ten in states like Durango, Sinaloa, Chihuahua and Guerrero. Lack of confidence in institutions is also high with Mexicans claiming that judges and police officials are “not effective” or “hardly effective,” according to a 2011 national confidence poll conducted by the National Institute for Statistics and Geography (INEGI). Overall perception of insecurity at the municipal level has risen from 40 to 60 percent since 2005.
In fairness, Mexico’s justice system has been undergoing a transition from an antiquated inquisitorial legal system inherited from colonial masters to one with oral, adversarial trials. The old system (in which judges sat behind closed doors reading lengthy written briefs to determine culpability) bred suspicion, corruption, and in the long run, resentment among a population that suspected that family connections, political favors, and pesos could pull the levers of justice. In 2008, President Felipe Calderón, accompanied by legal scholars and international experts labored to establish a new justice system with public trials at its core.
The new system, which borrows English case law concepts introduced in Colombia, Chile, Peru, and Argentina, was designed to help fight organized crime and give Mexicans trust in their government and institutions. Those accused of wrongdoing now enjoy a presumption of innocence, cross-examination, alternative dispute resolution (ADR), and other rights. In addition, the new system lets prosecutors order judge-approved pre-trial detentions of up to 80 days, seize personal and real property tied to organized crime, and conduct phone intercepts related to a crime with the permission of one of the parties.
The Mexican Constitution allows for an eight-year period for all of its 31 states and the capital city to incorporate public trials into the legal system. Thus far, three (Chihuahua, Mexico and Morelos) have a fully incorporated system, while another 25 have only partly implemented the new procedures. So far, results seem encouraging. States like Guanajuato and Mexico have successfully used ADR to settle a large number of cases to the satisfaction of both the injured and the state. Baja California developed internal indicators to drive state officials toward improving service delivery; and Morelos and Durango implemented public campaigns to train journalists and educate citizens on the new system. Mexican Interior Minister Alejandro Poiré claims the new system adjudicated roughly half of some 3,000 cases since 2008, 18 of them through public trials. The United States Agency for International Development (USAID) has also been an encouraging partner, training over 30,000 legal professionals, arranging exchanges between judges and lawyers from third countries, and ensuring U.S. and Mexican agencies, universities, and state attorneys general develop collaborative relations.
Law professors Miguel Carbonell and Enrique Ochoa note that oral trials guarantee the presumption of innocence and due process by forcing the state to bring evidence against the defendant. Opponents are troubled by recently enacted changes to the Federal Criminal Procedure Code, which, they claim, allows warrantless searches based on anonymous tips and admits statements made under duress or torture. They also claim technicalities allow dangerous criminals to go free, discouraging victims from reporting crimes. Lastly, they say high costs are another reason to roll back the new system, referring to Chile’s former President, Michelle Bachelet, who once reportedly said that Chile´s expenditure of $15 billion to institute a public trial system was wasteful.
Although it may not look like it at times, Mexico is working to improve law enforcement from beginning to end. Public trials actually fall in the middle of the justice chain between crime investigation and penitentiaries. Progress requires many steps. First, the development of new curriculum for law students and the re-training of judges and attorneys needs time and resources. Second, federal, state, and local governments must continue replacing corrupt police with those who meet high standards, and government at all levels must improve pay. Last, the federal government will have to regain control of its penitentiary system by establishing crime-free environments and anti-recidivism programs.
The new oral trial system can give Mexicans a fair day in court and deprive special and criminal interests from corrupting judges. Public trials can strengthen justice institutions, target corruption, and corral impunity. In time, Mexicans will come to realize this approach provides the best option for protecting individual rights across the board. In Hobbesian terms, democracy should prosper because the state will have delivered what citizens want most from government: peace and security.
Juan Manuel Henao is former Mexico country director for the International Republican Institute (IRI), a democracy promotion organization based in Washington, DC. He is currently a consultant based in Mexico City.