Dawn Marie Paley

Legal Battles in Mexico

Posted in Mexico, Uncategorized by dawn on 16/12/2011

Here’s a piece I did recently looking at U.S. backed changes to the legal system in Mexico for Upside Down World.

CHIHUAHUA, MEXICO–It’s not without reason that media coverage of the drug war is dominated by blood and horror: by some estimates, as many as 80,000 Mexicans have been killed since the war began in earnest five years ago. American critics of the atrocities taking place under the banner of the “war on drugs” often aim their sights at the Merida Initiative, a U.S.-Mexico plan which encouraged the militarization of the transportation and distribution of illicit drugs to, from, and within Mexico.

Originally conceived as a three year plan slated to end in 2010, the Merida Initiative has since expanded to mean much more than the deployment of U.S. helicopters, drug sniffing dogs and inspection equipment in Mexico.

In October, U.S. anti-drug czar and former ambassador to Colombia William Brownfield testified about what he called “Merida Part II,” before the House Foreign Affairs Subcommittee on the Western Hemisphere. Brownfield highlighted strengthening Mexican institutions and the “rule of law” as well as promoting civil society participation in anti-crime initiatives as key areas of U.S. Mexico cooperation. Together, these activities have also been denominated “democracy promotion,” though that exact language is not officially used to describe Merida II.

Legal reform is one of the focal points of the second phase of the Merida Initiative, which takes the form of “implementation of comprehensive justice sector reforms through the training of justice sector personnel including police, prosecutors, and defenders, correction systems development, judicial exchanges, and partnerships between Mexican and U.S. law schools,” according to the State Department.A country-wide transition from written trials to U.S. style oral trials is one of the most significant elements of these reforms. Chihuahua was the first state in the republic to transition to the oral court system, providing a template for legal reforms under the Merida Initiative. Beginning in 2003 the U.S. started to provide funds for the transition to oral trials in Chihuahua. Oral trials officially began in Chihuahua City in 2007, and in Ciudad Juarez in 2008.

According to Oscar Castrejón Rivas, president of the College of Lawyers in Chihuahua City, the U.S. used the World Bank to leverage the transition to oral trials, on the pretext that U.S. citizens accused of crimes in Mexico were tortured or forced into making confessions. Castrejón admits that there’s truth to that accusation, but he says forced confessions continue up until today, even under the oral trials system. He thinks there’s another reason behind the U.S. backed transition to oral trials.

“Just as within globalized commerce [the U.S.] wants a world where everywhere there is a McDonalds, an Applebees, a Home Depot, a Walmart, a Sam’s [Club]; they also want a world where tribunals are the same everywhere as they are in the United States, so that whatever legal issues they have can be dealt with perfectly well by a legal firm from the United States, which can operate in the U.S., in Puerto Rico, in Argentina, in Chile, and so on,” said Castrejón’s.

Castrejón’s observations point to a theme that dates back to at least the 1960s in the context of U.S. legal assistance to Latin America.

“In the early years of the law and development movement, legal assistance was often perceived as an administrative mechanism for ‘nation building’ and as a forum for stable and predictable commercial transactions within an implicit liberal capitalist economy,” wrote James A. Gardener in his 1980 bookLegal Imperialism: American Lawyers and Foreign Aid in Latin America. “In this sense, American legal assistance initially promised to reinforce prevalent ideas of national development that stressed industrialization and economic growth.”

“With nothing more than a lawyer who speaks English and Spanish, [the U.S.] can sit in the courtroom and argue their case,” said Castrejón, who has spent the last four years working in the oral trials system. The new system provides increased discretion to judges to rule one way or the other, says Castrejón, who also pointed out that sentencing under this system often has more to do with the ability and charisma of lawyers than with the facts of the case.

For other social activists, changes to the legal system represented a welcome shift away from a judiciary widely regarded as corrupt.

“The new criminal justice system is a total turn away from what was the criminal justice system, introducing a series of effective guarantees for the accused and even more importantly for the victims,” said Irma Villanueva, a lawyer who works with the Center for Women’s Human Rights (CDHM) in Chihuahua City. Villanueva traces reforms to the justice system in Chihuahua to of the hundreds of international rulings against the state’s legal system, particularly relating to the levels of impunity for femicides and disappearances.

But though today Chihuahua has extremely progressive laws on the books, Villanueva says access to justice remains a serious problem, especially for women.

“Just recently, in March-April, the first oral trial for the crime of domestic violence was heard,” said Villanueva. “Of the hundreds of cases and of investigations that have been presented since 2007, this was the very first,” she said. “This gives you an idea of how important this type of crime is for the administrators of justice, no?” she said, noting that sexism and discriminatory practices remain common among legal practitioners.

In 2008, President Felipe Calderón led a federal constitutional reform that means all states in the country will shift to oral trials by 2016, a move USAID calls “the most important reform in the field of justice and public safety adopted by Mexico since 1917.” USAID began participating in judicial reforms in Mexico in 2003, and remains an important player in Mexico through Merida II.

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