MEXICO CITY (CN) — A justice of Mexico’s Supreme Court Monday presented his second initiative aimed at reforming the country’s mandatory pretrial detention system, which human rights advocates have said disproportionately affects the poorest of the poor.
Justice Luis María Aguilar Morales’ first attempt to rule the measure unconstitutional was voted down in September when it did not reach the supermajority of eight of the court’s 11 justices required to approve it.
September's failed initiative aimed to invalidate Article 19 of Mexico’s Constitution, which establishes mandatory pretrial detention. This time around, the idea is not to nullify any part of the Constitution, but rather to reinterpret it.
In the new proposal (in Spanish), Aguilar argues mandatory pretrial detention should not be implemented automatically for certain crimes, but rather that judges should be compelled to debate the option of pretrial detention in cases involving those crimes.
Crimes warranting mandatory pretrial detention in Mexico range from burglary to kidnapping to corruption to organized crime. Aguilar's new initiative proposes adding tax fraud to that list.
This reinterpretation of Article 19 should be made with other basic rights in mind “in order to maintain coherence in the Mexican legal system and, in this way, avoid the formation of antinomies and the restriction of human rights,” Aguilar contends in the proposal.
“Mandatory pretrial detention should be understood as a precautionary measure, not an automatic one,” the proposal continues. “The automatic nature of the precautionary measure only means that it is a procedure in which the criminal judge must open debate to determine if the imposition of preventative detention is justified, without the public prosecutor’s office having to request it.”
The distinction of not invalidating an article of the Constitution gives the initiative a better chance of passing, according to Javier Martín Reyes, a constitutional law professor at Mexico’s National Autonomous University.
Much of the opposition to the failed initiative in September arose from justices’ reluctance to invalidate a clause of the Constitution. The vote sparked debate over whether or not the Constitution trumped the international treaties Mexico has signed and which deem mandatory pretrial detention to violate human rights.
“This solution changes the meaning of the Constitution, stating that it should not stop being applied,” said Reyes. “This new version makes a ‘conforming interpretation’ in such a way that Article 19 of the Constitution says something different from what it literally establishes. I’d say the chances of it passing this time are high.”
Haydeé Gómez, a legal analyst at the feminist human rights organization Intersecta, which filed an amicus brief in the Supreme Court for the previous initiative, also had a cautious optimism for the new proposal. The amicus brief argued that mandatory pretrial detention disproportionately affects women and the poor.
“It looks like it could be successful this time,” said Gómez, adding that the new initiative appears to conform to how legislators and politicians of the ruling Morena party argued the Constitution should be interpreted.
Morena politicians issued a press release ahead of the September vote arguing that the Supreme Court should not eliminate mandatory pretrial detention on grounds that such a move would infringe on the separation of powers and put international treaties on a higher legal standing that the country’s own Constitution.
“They’re proposing an interpretation that complies with the Constitution so that Article 19 is read as automatically opening debate over the precautionary measure,” said Gómez. “This is so as not to declare the Constitution invalid, like they proposed in September.”
Still, she an others at Intersecta haven’t started counting any unhatched chickens just yet.
“The hard part will be the vote,” she said.
While most decisions in Mexico’s Supreme Court can be approved with a simple majority, cases that involve declaring a law unconstitutional require the supermajority of 8 votes. Aguilar’s initial proposal received seven votes in favor of unconstitutionality, leaving mandatory pretrial detention in place.
President Andrés Manuel López Obrador has expressed vehement opposition to eliminating mandatory pretrial detention, despite its negative impact on the sector of society he claims to champion: the poorest of the poor. Political analysts told Courthouse News in September that López Obrador wants the measure to remain as is so that he can use it as a tool of intimidation against political opponents.
Intersecta estimates that nearly 100,000 people are currently locked up in Mexican jails and prisons without trials or convictions. Many of those have been in prison longer than the two-year legal limit for mandatory pretrial detention.
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