Columbia International Affairs Online: Journals

CIAO DATE: 04/2014

Court reform in Mexico — Central America's border squabbles — the Pacific Alliance.

Americas Quarterly

A publication of:
Council of the Americas

Volume: 0, Issue: 0 (Spring 2013)


Jose Antonio Caballero

Abstract

Judiciary: The Courts in Mexico BY JOSÉ ANTONIO CABALLERO The steady process of change in judicial organizations in Mexico, which began in the mid-1990s, was given a major boost in the past few years with four constitutional amendments. The most significant is a 2008 amendment requiring that all state and federal judicial systems transition from a written-based inquisitorial system to an oral-based accusatorial one by 2016. This will bring greater transparency while better protecting the rights of the accused and allowing for the presumption of innocence until proven guilty. Halfway into the transition phase, though, the processes’ slow implementation poses a risk that states won’t meet the 2016 deadline.

Full Text

Judiciary: The Courts in Mexico BY JOSÉ ANTONIO CABALLERO The steady process of change in judicial organizations in Mexico, which began in the mid-1990s, was given a major boost in the past few years with four constitutional amendments. The most significant is a 2008 amendment requiring that all state and federal judicial systems transition from a written-based inquisitorial system to an oral-based accusatorial one by 2016. This will bring greater transparency while better protecting the rights of the accused and allowing for the presumption of innocence until proven guilty. Halfway into the transition phase, though, the processes’ slow implementation poses a risk that states won’t meet the 2016 deadline. Only 18 of Mexico’s 32 states (including the federal district) have seen changes in their criminal justice systems. Chihuahua, Estado de México and Morelos have completed the transition to the accusatory model, while Baja California, Durango, Oaxaca, and Zacatecas have made substantial progress. Other states are still in the process of passing legislation or implementing and conducting oral trials, including the federal district, Chiapas, Guanajuato, Hidalgo, Jalisco, Nuevo León, Puebla, Quintana Roo, Sinaloa, Tabasco, Tamaulipas, and Yucatán. One holdup is that reform at the federal level is still in its early stages. This has reduced the pressure on the states to quickly implement changes in anticipation of the deadline. The enabling legislation embodied in the Codigo de Procedimientos Penales (Criminal Procedures Code) defines how the reforms will be adopted but is still stuck in Congress. In March, the Senate started holding public hearings to receive comments on the draft project, though the hope is still to secure its passage by spring. So far, states that have implemented the reform see it as helping to achieve a better allocation of criminal justice resources. Rather than going to trial, there is an increase in the use of alternative dispute resolution where the focus is on solving victims’ problems rather than imprisoning the accused. In Chihuahua, for example, statistics show that most of the caseload is processed before trial or in abbreviated trials. But to fully benefit from the reform, a number of other sweeping changes need to be effected. Lawyers, judges and judicial officials will need significant training in the accusatorial system. In addition, serious challenges remain to improve the quality of criminal investigations. In these cases, the federal government and states cannot wait until the last hour to implement reforms and assume that the system can instantaneously switch over. Beyond the larger judicial reform, three other recent constitutional amendments are helping to improve the judicial system: the introduction of class action lawsuits (2010); new procedures to improve access to the writ of amparo (2011); and acceptance of internationally recognized human rights as constitutionally guaranteed individual rights protected under the Mexican system (2011). The first, the introduction of class action lawsuits, permits groups of individuals to collectively file suit to defend their environmental, cultural, educational, health, or consumer interests—a right that is often used in countries such as Brazil, Chile and the United States. While this new provision has seldom been used thus far to protect individuals, the Procuraduria Federal del Consumidor (Federal Attorney’s Office of the Consumer—PROFECO) has filed actions on behalf of telecommunications and airline consumers. In February 2013, the Supreme Court agreed to hear a case in which PROFECO is suing Nextel on behalf of its consumers in response to complaints over a deterioration in the quality of service in 2010. Also, PROFECO challenged Air Madrid, Líneas Aéreas Azteca and Avicsa airlines for defrauding passengers. One of the biggest challenges facing the Mexican judiciary is implementing constitutional reform of the writ of amparo—long a signature characteristic of Mexico’s legal system. It functions like an injunction in U.S. law and allows anyone to appeal to successively higher courts for an order of protection against an action that they believe violates their legal rights. But amparo actions have been criticized for creating delays in litigation. To avoid serial amparo proceedings, the new constitutional article redefines how procedural violations are reviewed and mandates that circuit courts consider all such violations without the possibility of subsequent amparo proceedings. After the constitutional reform, a four-month term was given for legislators to enact a new amparo law so that procedures would be in line with the reforms. As of March 2013, more than one and a half years after the publication of the reforms, the new amparo law is almost ready for approval; the Chamber of Deputies passed the Senate version of the law in February 2013 with amendments that are now being considered by the Senate. Yet even with these improvements, the verdict, after nearly 20 years of judicial reform in Mexico, is mixed. While significant advances have been made in judicial independence, improving the professionalism of the judiciary and strengthening institutions, very little has changed for those who have the most first-hand interaction with the courts: accused offenders and litigants. Mexico’s judiciary remains a long way from improving the quality of the services it provides to the public. Trials are often slow-moving and riddled with unnecessary procedural requirements. Sentence enforcement is inconsistent. This problem is particularly a concern in debt collection cases, where opposition to foreclosures is frequent and assistance by law enforcement officials is scarce.1 There are two exceptions to this bleak landscape. The introduction of mediation in civil proceedings has spread to almost every judiciary in the country, with favorable results. And the procedural reform in commercial litigation has been widely approved, particularly in anticipation of the introduction of oral hearings. In the years ahead, most of the attention to judicial affairs will be focused on development of criminal justice reform. If this reform succeeds, it is likely to improve public trust toward judges, increase judicial independence and improve areas such as civil and commercial litigation. A visible reduction in backlogs and the introduction of standards that reduce processing times are also likely. However, if criminal justice reform is not successful, judiciaries will face challenges to their independence, including budget cuts and increased intervention in judicial affairs by other government branches. Failure may well mark the end of this period of judicial reform. [1] From a study on judicial performance with particular attention to debt collection by the Consejo Coordinador Financiero, entitled "Ejecución de Contratos Mercantiles e Hipotecas en las Entidades Federativas. Indicadores de Confiabilidad y Desarrollo Institucional Local." (Last accessed March 13, 2013.) Back to top Borders: Central America and International Law BY TIM ROGERS Is intra-regional conflict on the uptick in Central America? Click here to view a slideshow of Camp Harbor Head. In Nicaragua, conservationists are denouncing Costa Rica for environmental damage they claim has been caused by a newly constructed national defense border highway. Meanwhile, Costa Rica protests what it calls the “invasion and occupation” of its territory by members of Nicaragua’s Sandinista Youth movement. At the same time, Colombia and Nicaragua are feuding over their maritime borders. In mid-March, Nicaragua even sent a gunboat to the Gulf of Fonseca—a move that was quickly denounced by Honduras for intimidating its fishermen. To make matters worse, no one seems willing to talk about it. Nicaraguan President Daniel Ortega routinely skips regional summits of the Central American Integration System (SICA) hosted by Costa Rica, and Costa Rican President Laura Chinchilla retaliated by avoiding SICA meetings in Managua. Meanwhile, Colombian warships are patrolling in Caribbean coastal waters claimed by Nicaragua. Border problems in Central America have existed as long as there have been borders. Many of the disputes are over differing interpretations of nineteenth-century treaties. Nicaragua alone has gone to the International Court of Justice (ICJ) on three occasions—Nicaragua v. Honduras (1999), Nicaragua v. Colombia (2001) and Nicaragua v. Costa Rica (2011)—since the 1990s to settle century-old territorial disputes with neighboring Honduras, Colombia and Costa Rica. Of those three cases, the Nicaragua-Honduras dispute over maritime territory in the Caribbean was the only one that was resolved neatly and amicably—in 2007. Both sides agreed to abide by the court’s ruling, which granted Honduras sovereignty over four small islands in the Caribbean but established clear maritime boundaries in previously disputed seas. The other two cases have recently become more complicated as they move beyond the civilized chambers of litigation and into the messy realms of politics and public opinion. Nicaragua and Colombia Nicaragua’s dispute with Colombia was brought to the ICJ in response to Nicaraguan fishermen being harassed by the Colombian navy. Ironically, 12 years later, the situation today is exactly the same, if not worse. An ICJ ruling on November 19, 2012, upheld Colombia’s claim to the archipelago of San Andrés and seven smaller Caribbean cays, but determined that Colombia is not entitled to take all the surrounding ocean and block Nicaragua’s access to the sea. The provisional boundary that Colombia had previously and unilaterally established put the aquatic border at the 82nd meridian, which cut off three-quarters of Nicaragua’s 330-mile (531-kilometer) coastline from projecting 200 nautical miles out to sea, as established by international law. According to the ICJ, the 82nd meridian is no longer a relevant marker. It awarded Nicaragua nearly 38,600 square miles (100,000 square kilometers) of ocean claimed by Colombia under the 1928 Esguerra-Bárcenas Border Treaty. Under that treaty, Colombia recognized Nicaragua’s claim to the Mosquito Coast, and Nicaragua, under U.S. military occupation at the time, recognized Colombia’s claim to the archipelago of San Andrés, Providencia and Santa Catalina. The Sandinista government celebrated the ruling in November, with first lady (and government spokeswoman) Rosario Murillo calling it “the beginning of a new history of recovering Nicaragua’s sovereignty.” But so far it isn’t working out so well. Facing political pressures from former President Álvaro Uribe and an upsurge of patriotic passions from his fellow Colombians, President Juan Manuel Santos on the day of the ruling said that he “emphatically rejects” the ICJ decision, which had the effect of doubling the Central American country’s exclusive economic zone in the Caribbean Sea. Since the decision is legally binding and cannot be appealed, Colombia has withdrawn from the treaty that recognizes the authority of the International Court of Justice. But that withdrawal is not retroactive, so the decision is still binding. “Never again will we allow what happened on November 19 with a ruling by the ICJ,” Santos Tweeted to his 1.4 million followers on November 28. As Americas Quarterly went to press, Colombian warships continued to ply Nicaraguan waters, allegedly to protect Colombian fishermen. Nicaragua, which is outmuscled, can only hope that international law and dialogue prevail over brute force. So far, it’s a problem that Nicaragua must face alone and has done so quietly. Not even Nicaragua’s closest allies in the Bolivarian Alliance of the Americas (ALBA) have offered public support for their besieged comrade. Nicaragua and Costa Rica The border tiff between Nicaragua and Costa Rica combines both environmental issues and nationalism. For more than two years, brigades of Sandinista youth have been sent to a postcard-size swath of marshland along the delta of the San Juan River for training in environmental protection (even though the area was never much of a forest) and national defense. The youth are not armed but they are defending the territory by occupying it, and the military is about 1,300 feet (400 meters) down river. Costa Rica claims the young people are illegally occupying territory granted under the 1858 Cañas-Jerez Treaty, which recognizes that the San Juan River belongs to Nicaragua but that Costa Rica has navigation rights. On Costa Rican maps, it is called Isla Portillos. But Nicaragua, which calls the same land Harbor Head, claims the 2-square-mile (5-square-kilometer) area as its own. The dispute seemed to have been settled, at least provisionally, by the ICJ in April 2011, when it ordered both countries to withdraw security personnel from the disputed area until the fence line can be clearly demarcated. But that hasn’t stopped Costa Rica from claiming it has been a victim of a foreign invasion. Today, there are no army personnel on the disputed island—just the Sandinista youth—but Nicaragua has a nearby military checkpoint. “Since the beginning, the entire international community—with the exception of Panama—has turned a blind eye to this, adopting a position of neutrality which doesn’t work because this is a clear violation of the principles of sovereignty and territorial integrity that merits a strong international condemnation,” Costa Rican Foreign Minister Enrique Castillo told Americas Quarterly, charging that the international community’s apparent “indifference to and tolerance of Nicaragua’s illegal conduct sets a horrible precedent that weakens international law and order.” Nicaragua, however, claims that Costa Rica is endangering the region by building what it calls an ill-conceived and poorly constructed border-defense highway that parallels Nicaragua’s San Juan River. The Juan Rafael Mora Porras Highway (Route 1856) was started in 2010 without any environmental impact studies. Plagued by corruption scandals and poor engineering, the 100-mile (160-kilometer) border highway partially washed into Nicaragua’s San Juan River with the first rains of last year. A recent environmental study by the Humboldt Center and The River Foundation, in collaboration with the Investigative Center for Aquatic Resources at the Universidad Nacional Autónoma de Nicaragua (CIRA-UNAN), found that the Costa Rican roadway—which in some areas is only 33 feet (10 meters) from the riverbank—is affecting the natural habitat of some 600 species of animals. Nearly two-thirds of Route 1856 was built in an area that is considered “highly fragile and ecologically delicate, forming one of the principal nodes of biological connectivity in Mesoamerican Biological Corridor,” according to the report. The roadway is supposed to be completed in 2013 at a cost of more than $72 million. What will come next? Colombia’s refusal to accept the ICJ ruling on maritime boundaries in the Caribbean and the failure of court-ordered provisional measures to ease border tensions between Nicaragua and Costa Rica present an increasingly complicated challenge to the authority of international law. Will something else—either bilateral discussions or ad hoc negotiations brokered by neighboring countries—emerge to replace it?