A few days ago, a federal judge in Mexico ordered the release of a group of local government officials from the state of Michoacán (some of them elected, others appointed) that the office of the Mexican Attorney General (Procurador General in Spanish) accused of having links with the organized crime. The judge considered that prosecutorial accusations based on hearsay, illegally obtained evidence, and other questionable practices are simply not allowed and thus insufficient for convicting the officials. The reaction of the Mexican President and the Attorney General is not unexpected but still worrisome: they accused the judge for “liberating criminals” and have filed a formal complaint against the judge before the judicial council.
In Mexico, the Public Prosecutor’s Office (PPO) is subordinated to the Executive, whose political use of criminal prosecutions crystallized in the proverbial “for my friends everything, for my enemies the law”, attributed to the President who was in power in the beginning of the XX Century. The transition to democracy brought with it a series of constitutional amendments that include a judicial reform empowering the judiciary and a reform to the criminal procedure that emphasizes due process rights. The PPO’s institutional structure and the incentives of prosecutors, however, remain untouched and their practices are still those perfected during seventy years of authoritarian regime. The unfortunate coincidence (not completely fortuitous) of the process of democratization, liberalization, and decentralization with the increased presence and power of the organized crime and the drug trafficking has put the balance between security and liberty at the center of the stage. To mention just one example: the cited reform to the criminal procedure includes a special regime for persons accused of organized crime.
Despite the adverse political circumstances, the Mexican Supreme Court in a series of recent decisions (for example the Acteal case which was mentioned in this blog) has uphold criminal due process rights and put sensitive limits to prosecutorial discretion. The federal judge deciding the Michoacán case was actually following recent precedents. It is not only the prosecutor’s discretion that is being limited by the Court but also the army’s, though to a much lesser degree, given that the use of the military by the President to directly fight the drug cartels has predictably produced many claims of basic rights violations. The constitution and in particular due process rights should not become another casualty of the war of drugs. A strong defense of them is, in Stephen Holmes’s words, a case where “less is more”: less discretion for the government in the fight for security can result in more power and authority to carry out that fight. It is the province of the Courts to cleverly illuminate that difficult path.