Antonio Navalón
At this moment, Mexico must concentrate its efforts, illusions, tears, and joys on what will follow from here. “Haiga sido como haiga sido” (regardless of how it was achieved)—recalling the famous phrase of former President Calderón —the judiciary reform was approved and enacted on the same day Mexicans commemorated our country’s independence. It was a gift the outgoing president gave to his successor, although it confirmed that in our country, will is above all else.
It is not that faith moves mountains but that faith – especially in oneself and one’s people – can overthrow any institution. We are already a country with an approved judicial reform that has as one of its first consequences the need to count the exact cost of the dream and the destruction of powers. I have prepared a brief menu of the most elementary and quantifiable costs in the short term to magnify and translate some of the consequences of what has happened.
For obvious reasons – as the human beings that we are – I have placed in first place the translation of what will be implied by the fact that people who were or will be waiting for the resolution of a trial will no longer be able to do so under the system that for so many years characterized the legal evolution of our society. More than 37% of the people deprived of their liberty do not have a sentence. If we add to this the changes proposed in the Reform, the time it will take to formulate the secondary laws and all the additional work that will inevitably be added to the judges, there is a possibility that the average time to resolve a case could increase to more than 6 months for certain crimes. That is, of course, if everything goes according to plan and the proposed mechanisms work as intended.
With the delay in the application of justice comes the inevitable risk that this reform infringes on the freedom of Mexicans. Article 10 of the UN Declaration of Human Rights dictates that every human being has the right to a fair trial and a fair hearing by an independent and impartial tribunal. Today in Mexico, not only will there be a clear and potential impartiality at the moment of imparting justice, but also – in the midst of all the chaos created – there are still thousands of cases that have not even been able to be discussed nor are they close to obtaining a verdict. And the fact is that with the virtual disappearance and, above all, paralysis of the legal system, all those who were waiting to obtain a judgment in time, at least within the deadlines that are usually set in a judicial process, have been left in the complete and absolute abyss of uncertainty.
One does not have to be a magician to decipher that a delayed system will generate an overload not only for the judges – at this point it is indispensable to mention that there are only 4.6 judges per 100,000 inhabitants – but also for the penitentiary system. If something is not done to counteract this worrying situation, there is a clear risk of overpopulation in our prisons. However, to fill it, the great unknown of how and when the thousands of pending cases will be resumed must first be resolved.
In this regard, an estimate is that the cost of meeting this challenge will be at least 3 billion pesos per year, which will be used to hire more judges and administrative personnel. It remains to be seen if such hiring and processes are sufficient because if anything has been clear throughout our country’s history, it is that the use of more resources has never guaranteed more efficiency.
But this is only one of the problematic elements of the controversial reform. Among some of the economic costs that this act is having and may have – not to mention all – is the increasingly clear and inevitable flight of capital that has been generated due to the political, legal and juridical uncertainty that Mexico is experiencing. Unilateral decisions and the constant imposition of the will of the person who governs the country have caused – up to now – an estimated reduction of up to 5% of foreign direct investment in the short term. Likewise, this lack of clarity and confidence about the national outlook has indirectly caused – since it was not the only element – the depreciation of the Mexican peso by more than 2% and adverse fluctuations in the Mexican Stock Exchange.
Imagine you are an entrepreneur – either foreign or local – interested in investing in Mexico. After a thorough analysis of where and how you will invest your money, you decide to venture into this quicksand and make your investment. However, to your misfortune, tomorrow, someone chooses to bring out the worst of himself and swindles you or robs you, putting your integrity and the security of your money at risk. Who is going to judge that person? Or, better said, how is it intended to ensure and protect the investment of business people who are a fundamental part of the growth and development of a country like ours?
As shown in the reform, more than 1,600 judges, ministers and magistrates will be elected by popular vote, generating an unprecedented change in Mexico’s legal structure. The positions previously obtained through a system based on meritocracy and technical skill, today – and while awaiting what may be proposed in the secondary laws – it is still unclear what the requirements will be for those aspiring to form part of the country’s legal body. Furthermore, republican austerity was clearly not present in this process since this popular election is expected to cost more than 5 billion pesos. However – as we have seen in the financial projections of this 4T – it will easily exceed that amount.
One of the issues thought by all, but little discussed is the one related to the impartiality that the elected judges will have. The elimination of open competitions for the selection of judges and their replacement by shortlists proposed by the next president of the country and voted by the Senate could generate problems of partiality and call into question the judicial independence – it should not be forgotten that it is a Senate with a qualified majority by Morena and its allies. Today, the judicial system, its impartiality, and its efficiency are constantly questioned. I cannot imagine what will happen when the choice of those potentially responsible for imparting justice in our country is left in the hands of a few or, better said, whoever has the power.
Another of the consequences – which needless to say, there are already many and more to come – of the reform was the total stoppage of activities by more than fifteen thousand workers of the Judicial Branch. Although the strike ended last September 17, this act completely paralyzed the administration of justice in Mexico, without knowing for sure all the social, economic and legal effects of this act.
The list is long, yet the bells continue to ring. In our case, the bell of Dolores meant the beginning of Independence. After the reform, the day it happened, and how it happened, the bells are still ringing, and it is clear to me for whom they are tolling. They toll for the imperfect judicial system – manifestly improvable – but it was a system that served society as opposed to the significant vacuum that exists at the moment. I suppose that someone in the government, whether in the outgoing or the incoming one, will be thinking that it is very difficult that we are not already producing the amnesty decree so that – out of respect for human rights – those who are in jails awaiting trial, since they are not going to be able to have it, at least we grant them freedom.
Without trials and without a system that guarantees the correct application of justice, we run the great risk of ending up releasing very dangerous people in the streets. We exchanged hugs for bullets, now – if this situation does not mend the path and certainty is given – we will have to open our arms again, not only to be at the mercy of bullets, but to receive the criminals who are anxiously waiting for this situation to collapse and that this, in turn, will mean their inevitable release from the country’s prisons.
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