Amendments to Mexico's Law of Amparo are designed to clarify procedural protections for defendants
Guadalajara -
The lower house of Mexico's congress yesterday approved a bill which, if eventually adopted, will broaden the recognition of constitutional rights in all types of legal proceedings, especially in criminal cases.
By a vote of 360 to 70, the Cámara de Diputados, equivalent to the U.S. House of Representatives, passed a package which amends and clarifies procedural rights. The measure was approved just days after Mexico found itself under a harsh spotlight on the world stage for its treatment of Florence Cassez, a French citizen who spent more then seven years in custody for kidnapping and other crimes. On Jan. 23 the nation's Supreme Judicial Court ruled by a 3-2 majority that her legal rights had been violated, and ordered her freed immediately. The decision created a firestorm of controversy here.
If the planned reforms to the Law of Amparo are approved by Mexico's Senate and signed into law by president Peña Nieto, every Mexican accused of a crime will have greater access to the same type of remedies awarded to Cassez, which in practice have been far more theoretical than real. Moreover, in determining what constitutes a fair trial - referred to as "due process" - Mexican courts will be able to consider not only this country's constitution and statutes, but international treaties and laws as well. Reformers hope to convert amparo from a lofty legal concept to enhanced protections for everybody, especially for those without money or political clout, or on the lowest rungs of society.
A primer on the Law of Amparo
Amparar is a Spanish verb which means "to defend or protect someone or something from danger or injury." That's an accurate description of the role of amparo in Mexican criminal law. Amparo is the first cousin of another legal device known as habeas corpus, which has been used in Anglo-American courts for centuries. A discussion of the latter will serve to explain amparo as well.
In a U.S. court a convicted defendant may seek release from incarceration at anytime, if he can show that fundamental rights guaranteed to him by the state or federal constitutions were violated during his trial. Examples are endless and the law books are filled with such cases, although most petitions for habeas corpus don't succeed. But two extreme illustrations will make the point.
If police beat a suspect to extract a confession, it's not usable at his trial. If a judge allows the jury to hear the confession and the suspect is convicted, he can ask that his conviction be set aside even decades later. There is no time limit on the right to seek habeas corpus. The Latin words mean, "You have the body (of the prisoner)." They are a literal legal command to the sheriff or warden of a prison to produce the prisoner in open court, so the validity of his detention may be determined. If reviewing judges decide that his rights were violated he will be released, or a new trial without the confession (or other illegally acquired evidence) will be ordered.
Another example: A key witness against the accused, without whose testimony the State would never have been able to secure a conviction, years later admits to friends that he lied during the trial. The convicted party, now serving a long prison sentence, learns of the perjury. He may seek habeas corpus and ask a judge to throw out his conviction. Of course, he still must prove that the critical witness lied, which may not be an easy task. Recanting witnesses, as they're called, often tell so many different stories to so many different people that it's impossible to determine what the truth is. But if the prisoner can demonstrate that the trial testimony of the key witness is not worthy of belief, he, too, may win a ticket to freedom - a writ of habeas corpus. That is also the Mexican amparo.
Examples of the Mexican amparo, and what the proposed changes would mean
Mexico has had the amparo almost since its creation as a state, but it has not been equitably applied in legal proceedings. Amparo has often been sought by crooked politicians who found themselves in trouble with the law, and not infrequently it produced the desired results (Calderón criticizes Mexican judges for abuse of amparo). For the rank and file defendant, however, it has rarely worked. A primary purpose of the proposed constitutional amendments is to clarify that amparo belongs to all Mexicans and will be enforced on their behalf, just as it will for foreign defendants who land in Mexican courts.
One such foreigner who finally won amparo after many years of trying was Florence Cassez. The Supreme Court found that her criminal trial was riddled with procedural errors, and decided to vacate, or wipe out, her conviction. The three judge panel which ruled in her favor refused to give Mexican prosecutors an opportunity to retry her. One judge said the case presented "grave violations of human rights, the wholly corrupting effect of which destroyed the constitutionally guaranteed presumption of innocence, thus entitling Cassez to immediate liberty." Supreme Court orders Florence Cassez freed. The court emphasized that it had not reevaluated the question of her guilt or innocence, however.
But not every defendant has had the same legal luck. A former mayor of Mérida, under investigation two years ago for official misconduct, tried to short circuit the case against him using amparo, but a federal judge ruled against him. More recently, a well-known U.S. television personality tried to stall his first degree murder trial in Cancún with the same tactic, and he, too, lost that bid. He may ending up winning the case anyway, albeit for unrelated reasons.
Finally, it should be noted that unlike habeas corpus in American courts, which is a procedural tool used almost exclusively in criminal cases, the Mexican amparo may be applied in many other types of legal matters, including civil cases. On Dec. 5 Mexico's Supreme Court granted amparo to a gay couple in Oaxaca state who had demanded that their union be recognized as a legal marriage, and same-sex marriage activists in Yucatán state have hinted at a similar lawsuit.
In a series of cases last year, the Supreme Court even relied upon amparo principles to allow family members of a man killed by soldiers to intervene in the case. The court ruled that the soldiers must be tried in a civilian court rather than before a court martial (Supreme Court strips military courts of jurisdiction in offenses against civilians).
Recognition of international treaties and worldwide human rights standards
The courts of most nations look exclusively to internal law - to their own constitutions and statutes - in resolving legal disputes. Mexico's Supreme Judicial Court has been at the forefront of considering foreign law, especially as it pertains to human rights issues. The Cassez ruling was based in part upon citations to law from other jurisdictions, as well as treaties between Mexico and France. The proposed amparo amendments are designed to bolster and legitimize that "internationalist" approach.
Mexico's Senate will vote on the bill later this year. It's expected to pass.
Mar. 20 - Mexico's senate today approved the same bill which the Cámara passed last month. This brings to a close two year's of legislative debate over the scope of amparo reform.
Apr. 1 - President Enrique Peña Nieto today signed the amparo reforms into law.
Feb. 15 - Another excellent example of the almost unlimited reach of amparo: Mexico's Supreme Court approves polygraph tests for federal prosecutors, but with some limitations.
Feb. 18 - Nueva Ley de Amparo: indispensable un cambio de paradigma
Apr. 30, 2013 - Yucatán federal court orders recognition of gay marriage
Mar. 5, 2013 - Mexican deputies strip office holders, public servants of criminal immunity
Feb. 4, 2013 - Crime with "impunity" still the norm in much of Mexico
Oct. 31, 2012 - Mexican Supreme Court hands legal victory to woman almost killed by her boyfriend
Sept. 12, 2011 - Mexico should proceed with caution in “Twitter Terror” cases
© MGRR 2013. All rights reserved. This article may be cited or briefly quoted with proper attribution or a hyperlink, but not reproduced without permission.
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