The Law Is the Last Sector to Change

Beginning in the 1970s, there was agreement among most observers of Mexico’s public life that the country urgently needed reform in three basic fields--the economy, elections and the rule of law.

In the 1990s, remarkable advances have come in the economy and in elections. The privatization of hundreds of government-owned companies, the total elimination of the administration’s budget deficit and the lifting of trade barriers have made Mexico’s economy increasingly competitive. And this year, on July 6, the country held its cleanest and fairest elections in history--elections in which the ruling party lost its absolute majority in the federal Chamber of Deputies for the first time in the party’s history, which dates back to 1929.

Some measures have also been taken to revamp Mexico’s outdated legal system. But it is clear that this is one area in which Mexicans must still make serious efforts to bring an imperfect system up to the level of serving a modern country in the 21st century.

Some foreigners believe that there is simply no rule of law in Mexico. Cliche motion pictures and news coverage that tends to emphasize the negative have helped create this image. Reinforcing it is outsiders’ lack of understanding of Mexico’s legal system, which is derived from the Spanish and Napoleonic codes.

Unlike the U.S. system, there are no juries in Mexico. All legal decisions are made by judges and proceedings are always written. There are no oral arguments in Mexican courts.

Many Mexican jurists argue that Mexico’s legal system is formally better than that of the U.S. In their view, a judge ensures more predictable legal decisions than a jury; the Mexican system gives judges less discretionary flexibility in their decisions and sentencing.

But Mexico’s legal system also has major drawbacks. The presentation of evidence is much slower in written than in oral proceedings, and so trials in Mexico usually take longer than in other countries, according to National University law professor Raul Carranca y Rivas. The reliance on written evidence and the little freedom given to judges to move away from the letter of the law makes an extraordinarily high number of cases decided on the basis of technicalities. Add to this an excessive work load for judges and you have an explanation for the view that the rule of law does not exist in Mexico.

The real threat to the rule of law in Mexico has always been corruption. Mexican judges have so often ruled in favor of the highest bidder that few lawyers approach the bench with the idea that their cases will be decided solely on their merits. Moreover, judges consistently ruled in favor of the government’s position every time the administration was involved in a trial.

Some of the rules of the game are beginning to change. The first reform implemented by Ernesto Zedillo when he took over as president in December 1994 was a revamping of the Supreme Court. Zedillo forcibly retired the entire court and legislated a new system to designate justices. Although some critics argued that the president was conducting a veritable coup d’etat against an autonomous branch of government, and complained that he would be likely to pack the court with his supporters, he went out of his way to get independent career jurists for the new court. Not surprisingly, the court has become more independent and has ruled against the government in a number of crucial cases, some involving tax legislation.

Corruption is still common among lower level judges. But pressure against them is mounting. Judges who have set drug traffickers or kidnappers free apparently without cause have seen their decisions turned back by appellate magistrates. For the first time, moreover, some judges have been prosecuted. This, some say, is illegal interference in judicial autonomy, but others see it as a sign that accountability is for the first time entering Mexico’s judicial system.

The creation of federal and state human rights commissions has also helped strengthen Mexico’s rule of law. There are still frequent complaints of human rights violations, but the commissions often fight back successfully. Torture of detainees, previously the most frequent human rights violation complaint, has dropped significantly.

There is still a long way to go in the effort to build a system of justice adequate for Mexico’s new economic and electoral systems. Corruption, in fact, makes this a more difficult task than it was to open up the economy or organize free and fair elections.

But Mexico has no choice. Both government officials and members of the opposition agree that strengthening the country’s rule of law is indispensable to complete the country’s transformation. Mexico will never be competitive if it has an untrustworthy system of justice. And if Mexico cannot be competitive, all the efforts to reform the country’s economic and political systems will come to naught.