5 red flags regarding the criminal law reform

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Institutions haven’t managed to successfully communicate the purpose of the reform and, as a consequence, myths prevail; for instance, the idea that the new system is a forced copy of the Anglo-Saxon model, which is limited to oral trials, or that its implementation may increase impunity and insecurity.
Five years have passed since the June 18th, 2008 reform, whose purpose was to set the basis for a transformation of the criminal justice system in Mexico. It’s a pity that five years and millions of pesos later, the goal remains a faraway target. It is true that the challenge undertaken is gigantic: to transform our crippled system in order to comply with human rights demands and make it compatible with a modern democracy. The ambitious Constitutional modification triggered 33 parallel reform procedures – 1 in the federal sphere and 32 in local ones -. Thirty-three procedures with different features and challenges, but all forced to comply with the same principle: unify the quality of criminal justice. Despite the challenge, there are no excuses for failure since there were international examples of countries that went through the same transition (for instance, Chile or Brazil) or even local cases (like Chihuahua), which offered a window of opportunities to repeat successes and avoid failures.
It’s a good time to ask whether the aspirations of the reform are still in force and to evaluate the appropriateness of actions in that respect. Especially, focusing on the performance of two institutions created specifically to enable the implementation: the Coordination Council and the Technical Secretariat (SETEC). June 2016 (the deadline to finish the procedure) is closer as days go by, which is why it’s important to heed the red flags in the implementation route, with the aim of avoiding them of being overlooked and end up questioning the final result of the reform:
The first condition for implementation is the existence of political will. This should not be of concern at this stage of the process, particularly when considering that the 2008 reform approval was conditioned to the vote of a qualified majority within Congress and the political clearance of two thirds of the local legislations. A Coordination Council was created with the aim of easing the creation of agreements among several individuals to exercise the required actions. Regardless of that fact we can all wonder: where did the political consensus go? The issue was not a priority for the Calderón administration and thus, the synergy needed to boost it didn’t come to fruition. Peña’s government cannot afford this omission; the inclusion of the issue within the Pact for Mexico (compromise number 77) remains to be seen. That is, if the Pact hasn’t been broken by then.
Nevertheless, political will serve little purpose if no financial feasibility is available. Reforms cost a lot of money; it seems that sometimes legislators overlook this minor detail. Regarding that matter, the reform’s financial aspect is still a black box; we don’t know how expensive it has been, it’s not even clear what should be the priority expenses. National costs projected from 2012 to 2016 greatly differ and escalate from 5.7 billion pesos at the minimum, to 19.4 billion pesos in the optimum scenario, according to SETEC. Financial projections of 22 states range 580 million pesos, as an average. With such different financial scenarios, the resulting reform may vary a lot. If this wasn’t enough, there are still doubts over where these resources will come from and whether they will be enough. That way, it’s not surprising that in the last session of the Coordination Council a work group was created with the objective of finding financial alternatives.
Besides, along with the lack of political will, it is possible to identify the absence of collaboration and coordination between the different institutions involved – both in the national as well as the local level – as one of the obstacles putting at risk a successful implementation. This reform does not exclusively depend on the Judicial Power nor it can be materialized with the Executive Power’s will alone. Its compliance requires the coordinated labor of the three State powers and of several institutions ranging from government offices, tribunals, public security forces and public defenders. Without a collaboration scheme, planning will be inadequate and, thus, the actions exercised will be further away from acquiring the optimal use of effort, time and financial resources.
The scarce collaboration and the subsequent lack of clarity in the objectives and strategies, along with an absence of crosscutting actions and information flow, are to blame for the institutional asymmetry observed both at the national and local levels. Firstly, there is a notorious disparity between the federal and state governments. It is absurd that, despite being a reform boosted from the federation, the implementation process has been characterized by a lack of interest of federal institutions.  Under the principles through which SETEC rates the states’ progress, the whole federation would be delayed in the transition. The federal government hasn’t even complied with the first normativity and planning requirements. Likewise, it is possible to identify serious anomalies in the state institutions due to a lack of coordination that guarantees a similar progress. In these entities, the Judicial Power is the one that presents the biggest progress, way ahead of government offices. There has been generally very little attention towards the adjustments needed by security institutions, despite the fact that they’re a cornerstone in the adequate functioning of the system. Despite the fact that public defenders are the institutions with the largest gaps regarding its organizational strengthening, there have been few cases in which the necessary support has been provided so they can conquer their disadvantages. The objective of this reform consists in achieving a system that works based on strong and competitive institutions, therefore, deficiency in one compromises the success of all others.
Lastly, the lack of clarity in the reform’s objectives has negatively impacted the amount and quality of information transmitted to the general population. Institutions haven’t managed to successfully communicate the purpose of the reform and, as a consequence, myths prevail; for instance, the idea that the new system is a forced copy of the Anglo-Saxon model, which is limited to oral trials, or that its implementation may increase impunity and insecurity. This problem is aggravated with the lack of a parameter that distinguishes which information on the matters is of public interest. Institutions ought to inform in an opportune manner about management issues, for instance, financial states, organizational structures, working schemes, among others. Besides, the general population finds it difficult to access quality information on the subject using the available tools. For example, there is a prevalence of websites that lack substantial and current information about any progress on the matter. It’s a bit of a contradiction given that one of the reform’s principles is to provide judicial certainty through transparency and advertising.
The Peña Nieto administration and the state governments have the challenge of complying with Constitutional duties; therefore, solving the aforementioned issues is a priority. Signals are not currently hopeful; for instance, in the Fifth National Forum on Security and Justice – celebrated on May – the head of SETEC remarked the urgency of creating a strategic plan using a diagnosis of the reform’s current state and, regardless of the fact, nothing was brought up in the 10th Coordination Council.
With a discouraging panorama, the riskier thing to do would be to try to comply any way possible before the deadline ever since that the implemented reform would turn out to be of bad quality. This would be the worst case scenario – even worse than not finishing its implementation on time – given that it would turn out to be counter-productive to give the chance of a new system becoming worse than the past one. May it be through the continuity of the strategy of past administrations or the innovation of new routes, governments have an obligation that don’t need rushed actions. It is essential that institutions assume a real commitment with the reform, any other way will be impossible for justice institutions to obtain the trust and citizen legitimacy that they so desperately need.

Paulina Sánchez, Carlos De la Rosa y Sandra Aguilar

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