Monday, October 20, 2014

Seemingly Uncalled-for, Mexico Plans Justice Agency Changes

By Patrick Corcoran

Mexican President Enrique Peña Nieto has put forward a plan to radically reshape the nation’s Justice Department, the latest example of a long national pattern of unnecessary institutional reform disguised as progress.

As reported by Proceso and other outlets, last month President Peña Nieto sent a bill to Congress that would create a new agency called the “Fiscalia General de la Republica," which would replace the current “Procuraduria General de la Republica," the Mexican equivalent to the US Justice Department. Beyond the name change, the bill would also make the new FGR an autonomous body outside of the executive branch. 

The head of the new PGR would no longer be a political appointee serving at the pleasure of the president. Rather, the attorney general would be selected by both the President and the Senate, and would serve a term of nine years.

Peña Nieto has said the change would have the advantage of “depoliticizing” and “legitimizing” the criminal justice system. He has also said this change alleviates a long-existing problem in which prosecutions are seen as politically motivated, due to the PGR's association with the presidency.

The proposal follows up a wide-ranging plan for constitutional reform presented by the Peña Nieto administration in February. According to local reports, the switch to an autonomous FGR would likely not be finalized until 2018, Peña Nieto’s final year in office.

InSight Crime Analysis

While there is nothing inherently disastrous in the plan to create an autonomous FGR, Peña Nieto has not adequately explained why it is necessary. And given the substantial cost that the change implies, the burden is on the proponents of the reform to demonstrate that it would make Mexico safer. 

Peña Nieto’s claim that criticisms over the PGR's partiality hampers its legitimacy rings hollow. He said that Mexicans often suspect politicians of using prosecutors to punish their enemies, which would indeed be an evil worth rooting out at the core. However, he offers no example of any relevant case, an obvious indicator that we should treat his justification with suspicion.

In any event, when examining the legitimacy of the criminal justice system there's a far bigger problem than politicians trying to punish their enemies: the inability to consistently put perpetrators behind bars. The widespread lack of faith in the nation's judicial system is manifested in the rampant underreporting of crimes.

See also: Coverage of Security Policy

It’s also not clear that an autonomous FGR, with a Senate-selected chief, would be impervious to political pressure. The lower-ranking staff responsible for processing cases may include many ambitious individuals eager to curry favors with politicians. Judicial independence and autonomy is an elusive concept in many a country, regardless of how the justice system is set up. 

Creating and staffing a new agency is inevitably a time-consuming and expensive project. There is an opportunity cost to any governmental initiative, especially when it comes to institutional reform. Of course, there are times when the basic framework of a governmental agency is so damaged that it makes sense to start over, but to initiate such efforts in pursuit of little tangible gain is madness. Additionally, Mexico is already in the middle of a vast effort to reform its judiciary and implement an oral trial system; dividing its attention before the process is completed is a mistake.

Mexican leaders have a long history of pursuing institutional reform without paying sufficient attention to whether change is needed or whether changes will actually improve things. This is most evident when it comes to police reform. The Federal Judicial Police was among the dominant crime-fighting agencies during the 1990s, until President Vicente Fox created the Federal Investigative Agency in 2002. That agency, in turn, was restructured out of existence in 2009, under President Felipe Calderon, becoming instead the Federal Ministerial Police. Similar examples abound.

See also: Mexico News and Profiles

Even prior to this most recent announcement, the Peña Nieto presidency has been a parade of institutional change. Following his election in 2012, Peña Nieto created the gendarmerie, which responded to a need that most believe was non-existent. He dissolved the Ministry of Public Security, previously one of the most prominent cabinet agencies on issues related to organized crime. And now he is proposing a significant repurposing of another of the most important departments related to public security.

It is hard to see how these decisions add up to a coherent policy.

There is no evidence that this manic creation and disappearance of agencies has had any positive impact on crime. On the contrary, it imposes a stiff opportunity cost and likely dampens the morale among the officials charged with carrying out a department’s functions.

If there is a lack of convincing reasons why Mexico's leadership should rehaul government institutions, that is no way to build a security policy.

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This commentary, "Mexico Needlessly Plans to Alter Justice Agency," was first published in InSight Crime, on Oct. 16, 2014 and reposted per a Creative Commons authorization.  InSight Crime's objective is to increase the level of research, analysis and investigation on organized crime in Latin America and the Caribbean.  Patrick Corcoran is a writer and international relations student who specializes in Mexican affairs.