Teaching Comparative Government and Politics

Thursday, August 09, 2018

Fewer people expect the Mexican inquisition

Americans seem to assume that the adversarial system of enforcing laws (used in the USA, Canada, and the UK) is "normal." It's not, but more countries are trying it out. Mexico is slowly making changes.

Judging Latin America’s judges
ONE morning this year, in a windowless modern courtroom, Jorge Alberto Rodríguez faced justice. He was accused of driving a stolen car with changed number plates. The judge began by explaining his rights to him. His lawyer then tried to trip up the policemen whom the prosecution had produced as witnesses. To no avail: after an adjournment to allow a missing defence witness to appear via video link, the judge found Mr Rodríguez guilty. That seemed to square with the evidence. Having been on bail for the nine months since his arrest, he was given a suspended jail sentence of five years and fined 15,000 pesos ($800).

Such a trial could have taken place in a British magistrate’s court. In fact, it was in Mexico City. The case was conducted under a radical judicial reform. This replaces an inquisitorial model, long the norm in Latin America, under which judges investigated and evidence was all in writing… The new system has taken more than a decade to roll out and is more expensive. But it has several advantages. Fewer defendants are remanded to overcrowded jails, cases are heard more quickly and the prosecution must publicly prove its case. Under the old system, judges relied on confessions (often extracted by torture).

Yet the reform is much criticised. Its introduction has coincided with a big rise in violence in Mexico. Although this was caused mainly by the fragmentation of criminal gangs and their move into new lines of business, many politicians blame the reform instead. Judges and prosecutors are insufficiently trained in the new ways and many are going back to “old practices”…

Mexico’s experience is not unique. Since the 1990s the main focus of judicial reform in Latin America has been on criminal procedures. In all, 15 countries have made the switch to the adversarial system. This is an improvement, but not a panacea…

Many Latin American countries have reformed their economies, electoral systems and welfare states. But establishing the rule of law is much harder. Courts depend on many other actors, especially police and prosecutors, as well as politicians and citizens. Judicial reform nearly always involves trade-offs, especially between independence and accountability. And better procedures do not in themselves create better judges or justice…

Judicial reform in Chile, as well as Mexico, has produced some improvements... But public vigilance has to be sustained if a reformed judicial system is not to lapse into bad ways…

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