Monday, September 7, 2009

Mexico's Supreme Court is Now Stepping up to the Plate

By Patrick Corcoran

The Supreme Court, for all its collected wisdom and majesty in the US, does not suffer from a surfeit of reverence in Mexico. There is no landmark case like Brown v. Board of Education in Mexican history, nor have leading lights like Louis Brandeis or Felix Frankfurter passed through its chambers. It has often been derided as a tool of politicians, no more independent an actor than the average hand is independent from its wielder’s brain. 

But whatever the Mexican Court's historical shortcomings, its performance in the past several weeks has marked a sharp (and inspiring!) contrast from its politically handicapped past. The first sign of life came in early August: the Court ordered an end to the decade-long detention of 40 indigenous Chiapans, who’d been charged with carrying out a massacre in 1997, due to investigative improprieties.

A few days later, the Court announced that it will use its investigative capacity to examine the June fire in an Hermosillo day-care center that killed almost 50 toddlers. (The preliminary government investigations had been widely perceived as insufficient.)

Lastly, one justice, José Ramón Cossío, recently broached the possibility of the Court invalidating the military exemption from civilian prosecution, which is a major barrier to punishing human rights abuses.

No one lamented the immediate results of the Court’s actions, but many commentators pointed out that the Court’s intervention is a symptom of the sickness of Mexico’s institutions more than a sign of their strength. While much of the nation celebrated the release of the Acteal Indians, the Supreme Court’s intervention was only possible because the nation’s foremost criminal justice organ, the Attorney General's Office or PGR, railroaded them into jail with false evidence.

Similarly, many wonder why the Court needs to prod officials to investigate the incineration of 50 helpless toddlers, one of the more heart-wrenching tragedies ever visited upon Mexico. And Military analyst Jorge Luis Sierra spoke for this group when he wrote that it is not the Supreme Court that should be eliminating the armed forces’ exemption from civilian prosecution, but Congress.

In other words, the Supreme Court’s recent nobility shouldn’t be confused with an across-the-board improvement in Mexico’s institutions. The lack of overlapping institutional strength threatens to make the recent concern for the interest of less powerful Mexicans a fleeting phenomenon. A new set of justices could well come along and erase the Court’s modest gains. A newly ennobled Court, Sierra implies, is far from ideal.

Writing from the opposite point of view, José Antonio Crespo addressed this line of thought in a recent column appearing in Excélsior:

"Technically they are correct, but precisely for the reason that such institutions don’t work (or they work very badly, owing to the traditional inefficiency or because of political considerations) the court can contribute to moving machinery atrophied because of lack of use. The conservative position is based on the premise that we live in a normal democracy, in which investigative and criminal justice institutions function reasonably well and, as a result, the intervention of the court doesn’t make a whole lot of sense. Put evidently, we don’t live in that normal democracy but rather in a country of impunity…."

Both Crespo and Sierra are right, of course; while the Supreme Court watching out for basic civil rights marks an improvement from a callous Court in the pocket of the political class, an over-reliance on one institution is not a characteristic of a healthy democracy.

In many ways, the recent activity on the Court is comparable to the deployment of the army against organized crime. In both cases, the court/army is acting as a failsafe because the first-responder institutions don't function properly. Just as Mexico's police organizations should ideally be the ones taking on the drug runners, the Supreme Court could stick to constitutional questions if the relevant criminal justice agencies went about their job with a modicum of competence.  

Neither the army nor the Supreme Court should be considered anything more than a temporary balm. They have both helped assuage some specific aches, but neither has addressed the root ailment: Mexico’s institutions are, in far too many cases, dysfunctional. When that situation is resolved, when Mexico doesn’t have a single institutional failsafe but many, that will truly be a day for celebration.

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Patrick Corcoran (corcoran25@hotmail.com) is a writer who resides in Torreón, Coahuila.  He blogs at Gancho (http://www.ganchoblog.blogspot.com/).