Mexican Judicial Reform: Example of the Need for a Closer Look

By Todd A. Eisenstadt

Foro: el Nuevo Sistema de Justicia Penal, a un Año de su Implementación en Baja California, con la ponencia: “Hacia una Justicia más Transparente” /Photo credit: Gobierno de Baja California  / Flickr / CC

Foro: el Nuevo Sistema de Justicia Penal en Baja California / Photo credit: Gobierno de Baja California / Flickr / CC

Mexico’s judicial reforms have proceeded at an uneven pace in each of the country’s 32 states since they were approved as a constitutional amendment in 2008.  The new and spacious “tower of justice” in Baja California shimmers in the desert sun, an outward sign of the $100 million-plus program that is the centerpiece of the state’s “law and order” administration.  However, halfway across Mexico, in the state of Puebla, litigators, police, and judges – untrained in the new judicial system they are implementing – watch their first important case, a manslaughter conviction, give way to a plea bargain after a series of errors.  Morelos, Oaxaca and other states do not have inter-connected computer systems for prosecutors and defenders, and Nayarit has not even passed a state-level criminal justice code to bring that state up to compliance with the 2008 reforms.  And Chihuahua, where Ciudad Juárez in 2011 held the distinction of being the most violent city in the world, a punitive “counter-reform” reducing the rights of the accused has set back that state’s reform efforts.

Progress on the reforms has been stymied by lack of a litigation tradition, a failure in interagency cooperation, a shortage of technology and resources, a lack of political will, and a lack of public support.  Mexico’s drug-related violence has put it at the center of hemispheric debate on judicial reform, but even heralded reforms of the 1990s, such as in Argentina, Bolivia, Panama, and Peru, have been unevenly implemented.  Chile’s reforms, widely seen as successful, were made possible by overcoming inertias, including judicial resistance to the creation of an adversarial relationship between defense and prosecution that moved judges into an institutionalized neutral position.  Legal scholar Mauricio Duce also argues that the retooling of Chile’s Ministerio Público – an autonomous body that functions as a fiscalía or justice ministry – was crucial because the institution became the “engine” of the reforms.

Each country brings its own history, culture and institutional strengths and weaknesses to the challenge of judicial reform. With the results of the first generation of reforms so mixed, a rigorous review of  what has worked – and not – in Latin America, Africa, or Eurasia and elsewhere can help overcome these dramatic shortcomings in the implementation of  reforms. The political commitment to reform is important, but understanding the political contexts and legal/administrative components in each case is also essential for improving the rule of law and accountability, deterring violent crimes, improving human rights recognition, economic development, and establishing security and law and order. When academics, program managers, and political leaders understand why a country like Mexico can have such vastly varying results from the same reforms, they can all take a giant step toward achieving more lasting and positive change.

Todd A. Eisenstadt is a professor of government at American University.

Indigenous Prospects in Mexico

American University professor Todd Eisenstadt has turned the conventional story about indigenous peoples in Mexico upside-down.  In Politics, Identity and Mexico’s Indigenous Rights Movement,* Eisenstadt presents evidence that Mexico’s indigenous peoples are at present not best characterized exclusively by the pursuit of communitarian ethnic goals and the defense of their collective rights and autonomy.  Rather, he shows that indigenous people are often preoccupied with their socio-economic conditions and struggles over land tenure and ownership, more than with ethnicity, and in ways largely comparable to non-indigenous Mexicans.

For at least a decade after the Zapatista revolt exploded onto the world stage in 1994, indigenous concerns and critiques of the state helped shape national Mexican politics and public debate.  The 1996 San Andrés Accords underscored the Zapatistas’ analysis of the limits of liberal citizenship and of the negative consequences of neoliberal state policies.  Now, in late 2012, indigenous political possibilities in Mexico appear very different.  The government has still not ratified the Accords; Mexico’s center-left has failed to capture the presidency; and the neoliberal policies of the Calderón administration promise to continue with the PRI’s return to power.  Indigenous social mobilization has been fragmented since the early 2000s.  Localized conflicts have flared up over government efforts to privatize land for outside investment and development, but these have not led to larger-scale indigenous mobilization.  The Zapatistas’ “Other Campaign” has had little impact, and they did not participate in the recent presidential elections.  As regular teacher strikes and the attention generated by the spectacle of the “#YoSoy132” anti-electoral fraud student movement have made clear, the national center of gravity of social protest no longer turns on an indigenous axis.

Eisenstadt’s book sounds a skeptical note about the possibilities for ethnically-based indigenous mobilization in Mexico.  His research underscores that Mexico’s development model does not adequately address the needs of ordinary Mexicans – including of indigenous peoples – at a moment when we should expect more of the same from the Peña Nieto (PRI) administration that takes office on 1 December.  He documents the shift away from primordialist accounts of indigenous identity to friction over control of economic resources – a shift from ethnicity to class – that is seen in some other Latin American countries. While countries such as Bolivia have actively incorporated indigenous nationalisms into state policy and law, Mexico appears headed in the other direction.  This divergence illustrates the elusiveness of the ongoing search for the best balance between collective and individual rights in Latin American countries with large indigenous populations.

* Politics, Identity, and Mexico’s Indigenous Rights Movement
by Todd A. Eisenstadt
Cambridge University Press
ISBN-10: 110700120X
ISBN-13: 978-1107001206