Cablegate: Congressional Debate Over Justice Reform Moving

DE RUEHME #6196/01 3512018
R 172018Z DEC 07




E.O. 12958: N/A

1. Summary. The Mexican Senate passed judicial reform
legislation that would facilitate transition to an oral trial
system, give law enforcement officials broader search and
seizure authority, allow consensual monitoring of telephone
calls, and give police more responsibility for conducting
investigations. Since the Senate modified several articles
of the draft prior approved by the House of Deputies, the
Senate version will return to the House for consideration in
February. Several leftist parties and human rights
activities described the legislation as a "step backwards,"
giving the State excessive authorities at the expense of the
accused. Many jurists, however, believe effective
implementation of the legislation will make the Mexican
system work more transparently, expeditiously, and fairly.
End Summary.

2. President Calderon introduced a draft judicial reform
bill to the Congress last March but it went through a series
of modifications before coming up for a formal vote. The
House of Deputies approved its version of the bill 301-94
December 12. PRD Deputies split their vote with the majority
voting with PAN and PRI in support of the bill but other PRD
Deputies voting with Convergencia, the Labor Party (PT) and
PANAL against the bill. Mexican Senators from PAN, PRI, and
the Green Party (PVEM) outvoted Senators from the Leftist
Front (PRD, Convergencia, the Labor Party (PT) and PANAL)
80-27 December 13 to pass their own modified draft of the
bill after a 20 hour debate. The Senate version returns to
the House for consideration in February after the winter

What Would it Change?

3. The bill passed by the Senate modifies some 12 articles
of the Mexican Constitution relating to the judicial system.
If ultimately passed into law, the bill envisions
implementation of the changes taking place over 8 years. The
most noteworthy reforms would include the following:

-- Oral Trials: Mexico's present judicial system is
described as a mixed inquisitive/accusative system but
predominantly the former with judges having no contact with
the accused in over 80 percent of the cases they decide.
Under this bill, Mexico's system would transition more
rapidly to a fuller embrace of the oral, adversarial system.
The victim would have additional rights to participate and
receive restitution in the process, the accused would enjoy
the presumption of innocence and a greater ability to
confront their accusers and challenge the testimony of
witnesses against them, and the police would assume wider
authority for investigating cases, which currently are
tightly controlled by prosecutors. The changes are designed
to foster greater transparency, efficiency, objectivity and
fairness in the rendering of decisions.

-- Expanded Search Authorities: The House draft had allowed
for Federal Police to enter premises without a warrant in
certain exigent circumstances if they believed an individual
was in danger or a crime was underway inside. The Senate
version raises the bar for entering without a warrant,
requiring police to have clear evidence -- rather than mere
belief -- of exigent circumstances. Under current law, there
is no such exigent circumstance exception to the warrant
requirement for entering a residence or other premises.

-- Access to Financial Documents: The House Draft had given
the Attorney General's Office access to financial documents
in the investigation of organized crime cases. The Senate
amended this provision to require prosecutors obtain judicial
authorization before they can access these documents.

-- Asset Forfeiture: The bill would make the necessary
constitutional changes to allow the judicial forfeiture of
assets that have been the instrument, object, or product of
criminal activity, without the need of a criminal conviction
of the property owner first. Mexico's lack of civil
forfeiture procedures has seriously hampered its ability to
take illicit assets away from criminal organizations, and
with these changes, the GOM plans to establish a forfeiture
regime similar to Colombia's law of "extincion de dominio."

-- Special Judges: Law enforcement authorities will have more
immediate access to judges in seeking approval of searches
and other investigatory measures.

-- Telephone Intercepts: Telephone conversations taped
without a court order will be admissible as long as one of
the parties to the call consents.

MEXICO 00006196 002 OF 002

-- Rights of the Accused: The bill clearly establishes,
inter alia, the accused's right to remain silent and the
right to information, a public trial, interpretation, and
public defense.

Who Opposes the Bill and Why?

4. Most opposition to the bill is couched in human rights
terms. Jose Luis Soberanes, the President of the Mexican
government's semi-autonomous Human Rights Commission (CNDH)
described it as a "step backwards for human rights in
Mexico." Rosario Ibarra of the Labor Party complained the
bill extended the police excessive authorities. She worried
the bill gave a police force lacking in any appreciation for
human rights the power to decide when a public demonstration
might be considered as connected to organized crime and thus
illegal. PAN Senator Alejandro Gonzalez Alcocer, President
of the Senate's Judicial Committee, responded that in their
defense of individual rights some tend to forget that
citizens have a right to public security. President Calderon
insisted "law enforcement is inseparable from respect for
human rights" and that his government would "not stand for
any violations of the law in the fight against crime."

5. Comment: Few would dispute the assertion that Mexico's
justice system is broken. Poor defendants are detained for
years on minor charges awaiting sentencing in a judicial
system from which they are detached. Rich, well-connected
defendants evade justice relying on corruption but also, in
large measure, loopholes in the current system that tie the
hands of law enforcement authorities seeking to conduct
thorough and aggressive investigations. The reforms
contemplated respond to many changes USG agencies have long
supported through various programs, technical assistance, and
joint cooperation in operational and case-related matters.
They would render Mexico's system more transparent and give
law enforcement authorities more tools to prosecute organized
crime cases. The House already approved a tougher version of
the bill adopted by the Senate. The votes should still be
there to approve the new version when it comes under
consideration by the House in February. As the bill involves
modifications to Mexico's constitution, if it is approved by
the House in February, it will need to be passed by a
majority of Mexico's 31 states before it goes to President
Calderon for signature. End comment.

Visit Mexico City's Classified Web Site at and the North American
Partnership Blog at /

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