President Peña has announced the decision of granting a pardon to Alberto Patishtán, a Chiapas teacher who has been in prison for the last 13 years for various federal crimes, in a process full of irregularities. This decision was possible due to a legislative change in the 97th article of the Federal Crime Code (CPF), which broadened the Presidential faculty of granting pardons, which was already established in the XIV fraction of the 89th Constitutional article. It is worth reflecting upon the reform, beyond the emblematic case that boosted it, as well as the results it will bring for justice procurement and administration within the country.
According to the Mexican judiciary framework, a pardon could only be granted to “those sentenced for federal crimes and those sentenced for ordinary crimes in Mexico City”. With a new paragraph added to the 97th article of CPF, granting a pardon can occur whenever there are violations in the criminal process that may have prevented the accused from proving his or her innocence. Nevertheless, CPF still acknowledges the discretional nature of pardon and does not establish control mechanisms, beyond conditioning the decision to the depletion of all legal resources and the proof that the convict is not a danger for public security. On the other hand, international experience shows – for example, within the US, where the only restriction is for those who are convicted of political misdemeanors – that the aforementioned discretional nature is inherent to the pardon legal concept. Curiously enough, the pardon is not a frequently used “tool”.
Just like it can be an almost unlimited power used by the Executive, granting a pardon can also have major political implications. However, due to new regulations, there is a justification of correcting a fault within justice procurement system, or in other words, violations to due process. Its use has been hailed following Patishtán’s release but, what would happen in a more controversial case, even if fundamental rights’ violations were to be the issue? Knowing how irregular the Mexican legal system is, this “justified discretion” can prove to be a double-edged sword.
By definition, granting a pardon implies a “forgiving” that acknowledges that a crime has been committed and its perpetrator is thereby guilty (which is the reason why Patishtán refused to ask for it). With the new changes, it is not clear at all, because it indirectly recognizes the possibility that the accused might be innocent. In any case, granting a pardon carries a huge symbolism that communicates major faults within the justice procurement system in the country. If the new criterion for granting a pardon is the existence of violations to the due process it is worth asking: when is the Mexican prisoners’ mass exit taking place?
The use of granting a pardon to dismiss a sentence that is the result of a process full of irregularities such as the case of professor Patishtán is commendable, but it would be naïve to believe that its utilization might influence how the justice procurement system works in Mexico. It goes without saying that those who have been unfairly imprisoned because of violations to the due process won’t be freed nor will the pardon be a “light of hope” in search of justice. If it serves as a way to correct an injustice, the pardon should not even have a reason to exist within a properly-functioning system. If it’s a way to smooth political costs of a controversial releasing using the argument of “rectifying faults in the due process”, this “Mexican pardon” will prove to be a return to Presidentialism. The latter is a crucial matter: the new legal concept of pardon provides the Executive with great powers, which can be used in an entirely discretional manner, rewarding or (implicitly) punishing whoever it chooses and without any sort of accountability.
CIDAC
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