Thursday, March 16, 2017

While Scolding Trump, Mexico Seeks to Curtail Citizens’ Rights

MEXICO CITY — Even as Mexico fumes over President Trump’s aggressive stance toward its people, the Mexican government is quietly trying to rip up basic legal protections for its citizens at home and gut longstanding efforts to fix the nation’s broken rule of law.

Legal experts fear the move will set back human rights in Mexico by decades.

The tool is an innocuous-sounding bill, submitted last month by a close ally of President Enrique Peña Nieto — only a day after his government publicly chided the Trump administration to respect the rights of all Mexicans.

The governing party says the bill, labeled a reform to the criminal code, will make “adjustments” to Mexico’s new legal system, a linchpin of cooperation with the United States that was completed last year with more than $300 million in American aid. It is widely considered Mexico’s most important legal advancement in the past century.

But while the American-backed legal system is supposed to enshrine human rights in a nation desperately lacking them, this new bill heads squarely in the other direction. Legal scholars say it will broaden the power of the Mexican government to detain suspects for years before trial, enable the police to rely on hearsay in court and potentially allow prosecutors to use evidence obtained by torture.


Beyond that, the bill, which has not yet been approved by Congress, flips the very premise of modern justice on its head: Rather than innocent before proved guilty, it would require concrete evidence of reasonable doubt, essentially shifting the burden of proof to the accused.

“It is not only a counter reform, but it has reforms that contravene the right to a proper defense,” said Alejandra Ramos, a judge in the state of Chihuahua. “They want to pass this because it is easier to do than to train police officers and prosecutors, clean up the entire system and break the use of torture as the main tool of investigation.”

The legislation reflects a central contradiction of modern Mexico under Mr. Peña Nieto and his party: the version of the country that his government promotes to the world versus the reality it creates on the ground.

In promoting Brand Mexico, the government has fashioned the image of an ascending nation, a regional leader ready to take its place on the global stage, competitive on issues of trade, economics and culture. And yet, presented with mounting violence, vast inequality and a human rights crisis in which torture at the hands of security forces is “generalized,” in the words of the United Nations, the same government frequently runs roughshod over the rights it claims to defend.

The government’s recent scolding of the Trump administration — while actively trying to roll back the rights of Mexicans at home — underscores the paradox.

When Mr. Trump ordered a wall between the two nations, the Mexicans called it an alarming assault on their dignity, vowing to defend their citizens in the United States and publicly insisting last month that “all Mexicans should be treated with absolute respect to their civil rights and human rights.”

But back home, the Mexican government was busy doing the opposite, introducing a bill to reverse central tenets of the new justice system with such little publicity that many lawmakers, judges and defense lawyers do not even know about it.

International bodies that oversee Mexico’s human rights record say the legislation is part of a long pattern by the government. In its handling of the vast corruption that runs through the justice and political systems, the impunity of its security forces, or the investigations into the tens of thousands of disappearances across the country, they say, the government often undermines the major breakthroughs it claims to be making.

“Mexico has worked hard to promote its image as a state that defends or advances international human rights,” said James Cavallaro, a commissioner on the Inter-American Commission on Human Rights and a professor at Stanford Law School. “But at home, the human rights situation is simply dreadful: severe abuse, torture, summary executions and virtually guaranteed impunity.”

The bill is part of a broader packet of changes. The governing party and other lawmakers have also submitted several versions of the law that would legalize the army’s enforcement of domestic security, a role the military has played without a legal mandate since the drug war began a decade ago.

During that time, torture and extrajudicial killings have soared. According to the government’s own data, the military kills far more combatants than it injures, a lopsided record that defies the history of war. The elite marine forces, for instance, kill 30 people for every person they injure, a ratio that experts say points to a high likelihood of extrajudicial killings.

Very few soldiers are ever punished for crossing the line. Of the roughly 4,000 complaints of torture that the attorney general’s office has reviewed since 2006, only 15 have resulted in convictions, raising broad international concerns about impunity and the government’s willingness to tackle human rights abuses.

The government says the military bill will help regulate the armed forces, giving them the legal authority to continue their essential role in fighting organized crime.

“But that isn’t the right question,” said Jan Jarab, the representative for the United Nations high commissioner for human rights in Mexico. “The right question is, Should they continue to do it at all? The right question is, Has the military paradigm been successful? The answer to that, in a huge and overwhelming majority, is no.”

Driving the government’s legislative push is a profound fear: that the nation’s fragile security situation, already a major stain on Mexico’s international image, could unravel further.

The new legal system, for example, retooled with the United States over a period of eight years, affords more protections for defendants and requires robust evidence to detain people. As a result, Mexican officials say, suspects are walking free, to the frustration of prosecutors, the police and even regular citizens.

“Like all recently implemented systems, it is necessary to make certain adjustments for it to work as it should,” the president’s office said in a statement explaining the proposed changes. “Different sectors of the new justice system and civil society groups have expressed the need to make adjustments.”

The government added that it was fully committed to human rights, had pressed forward vigorously to enact the legal system and had “trained all of the police in the country” in the new legal standards.

But under the government’s proposals, critics say, longstanding efforts to tighten rules on evidence and train a functioning police force would most likely be abandoned for a more expedient approach to dealing with crime, leaving untouched a central problem plaguing Mexico today: impunity.

“If you look at both of these laws, they are geared towards the same goal — the police having more power and slowly transitioning the country into something like a police state,” said Javier Carrasco, the executive director of the Institute of Penal Justice. “They are both geared towards the same horizon.”

The United States has been notably quiet about the bills, given how much it has invested to overhaul Mexico’s legal system. The Americans have equipped courtrooms across the country and trained judges, prosecutors, police officers and law professors.

To some critics, the United States’ silence is a reflection of the new relationship between the two countries, with American influence waning amid the hostilities between Mr. Trump and Mexico.

“We have lost our ability to have a dialogue with them now,” said Mark Feierstein, the former director of Western Hemisphere affairs at the National Security Council under President Barack Obama. “With the Trump administration’s attitude towards our press and judicial system, and the coarse language he uses, we have lost our standing globally.”

When the legal reform was first passed in 2008, it was hailed across Mexico’s political spectrum as a seminal moment for the country. No longer would court decisions remain shielded under an opaque written system. Instead, the entire country would move to a so-called accusatorial system, in which prosecutors and defense lawyers presented their evidence in public.

But the new criminal justice system has exposed deep flaws in the capacity of law enforcement to collect evidence and investigate cases. Despite eight years of training, the authorities still often rely on a single confession obtained through torture, and some officials have condemned the higher burden of proof, especially when suspects are released because of it.

“What is absurd is that they are not letting the 2008 reform sit, or allowing it to be managed by the judges first,” Fernando Gómez Mont, a former Mexican interior minister, said of the government’s push to undercut the legal system.

For all of the criticism of the military, there is widespread agreement in Mexico that no other institution is ready to battle organized crime. Sending soldiers back to their barracks could create a security vacuum, a point leaders of the army have repeatedly made when demanding legal protections.

Mr. Peña Nieto, whose approval ratings are the lowest of any president in a quarter century, has been supportive of both measures.

In 2014, one of his allies submitted a similar package of changes to the new legal system. Then, as now, the effort came at a time of national tension and distraction, just two months after the mysterious disappearance of 43 students. Opponents fought the changes and prevented their passage.

Then, in December, during a session with his National Security Council, Mr. Peña Nieto urged lawmakers to broaden the military’s power in domestic affairs and promised that in 2017 his administration would work on “correcting the operational flaws of the new penal justice system.”

To gain support for the bills, Mr. Peña Nieto has relied on a strategic ally, César Camacho, the leader of his party in Congress who submitted them. Mr. Camacho, a longtime politician, is in a unique position: He was a principal shepherd of the new legal system that was hailed as a breakthrough for Mexico. But he has been conspicuously quiet about his legal reform bill, even when publicly discussing the problems it is supposed to be solving.

On a recent panel in Mexico City, Mr. Camacho shared the dais with several legal experts invited to assess the “New System of Justice: What Is Lacking for Its Consolidation?”

For more than two hours, the panelists talked about the legal system, discussing the need to ensure that prosecutors and police officers are better trained. Not a single person, including Mr. Camacho, mentioned his bill to reverse significant elements of the system, a reflection of the lawmaker’s power and the reluctance of many to challenge him.

After the discussion, when asked about his bill in an interview, Mr. Camacho shook his head and smiled.

“I am a proponent of the accusatory system, and I know it inside out,” he said. “What is necessary now is to make adjustments that allow for an absolute respect to civil liberties, and to give the Mexican state instruments and elements to make it more efficient.”

Mr. Camacho has been more outspoken about the military bill, tamping down opposition in January by saying that it would ultimately benefit human rights.

“This law is not intended to militarize the country,” he said during a radio interview, “but rather to give certainty to the population so we know the boundaries of the armed forces’ actions.”

But rather than curtailing the scope of the military’s operations, Mr. Camacho’s bill would expand its official powers to include police functions like executing arrest warrants, tapping private communications, overseeing crime scenes, interviewing witnesses and investigating cases.

Mr. Camacho has told officials that while the legislation carries his name, its true authors are the arms of law enforcement in the country: the attorney general’s office, the National Security Council and the military.

The decision to install the military on the front lines with drug traffickers was, from the beginning, a tacit admission that the police could not manage the fight. With the police picked apart by corruption, poor training and disorganization, the army was the only force left capable of confronting the growing power and violence of the cartels.

But a decade’s worth of research has shown that deploying the army has only deepened the country’s crisis. Beyond human rights violations, many argue that the strategy has been a failure from a security standpoint alone. Violence in Mexico today is once again approaching the peak levels of the drug war reached six years ago.

New research has also shown that when the army is deployed in a community, violence tends to rise. Homicide rates increased 8 percent in areas where the armed forces deployed, and 9 percent where the army specifically was active, according to research published by CIDE, a Mexican research center.

“We have been through the same strategy of militarizing public safety, and it has been a tremendous failure,” said Catalina Perez-Correa, a professor at CIDE who has studied the issue. “Not only has it not diminished violence, we now have evidence that it has worsened violence in Mexico.”

Justice has always been a moving target in Mexico, where 98 percent of homicides go unsolved. But most legal scholars say the new legal system is infinitely better than the one it replaced. Still, its execution, they warn, relies on civil servants with poor training and, in some cases, bad habits.

“We have not done what was necessary to make the system function properly,” José Ramón Cossío Díaz, a Supreme Court justice, said in an interview with the newspaper Universal. “I think a lot of people are assuming that just because we have oral trials and courtrooms, because we have the scenery, that the trials will work, but this is not a play.”

The state of Chihuahua, along the border with Texas, was the first to undergo the transition in 2008, and the first to pass legislation to essentially reverse it after an outcry from law enforcement officials in 2010 and 2011.

“A reform of this size and relevance requires a complex transition process, a cultural change of mind, a generational turnover even,” said Pablo Gonzalez, a judge in Chihuahua. “But that doesn’t mean we should stop walking the path towards that goal, no matter how complex and how much time it takes us to get there.”

Fundamentally, he said, it boils down to a choice between controlling crime with arbitrary arrests or delivering something closer to justice.

“We cannot play the same game on the federal level,” he said. “We cannot make that bet, because there is simply too much at stake.”

Correction: March 16, 2017
An earlier version of this article misidentified the communities where the research group CIDE found that the homicide rate had risen 9 percent. It rose in places where the army — not the navy — had been active.

Paulina Villegas contributed reporting.

NYT

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