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"PGR and the Rule of Law in Mexico"

Alan Bersin — Informador

This column appeared in Spanish in Informador. The Spanish version can be found here, and the translated text is below.

President-elect Andrés Manuel López Obrador cannot be faulted for exploring new and creative measures to improve public safety and tackle organized crime and violence. Yet, his recent amnesty proposal for low-level drug offenders is not only tactically doomed to failure, it also is contrary to the vital work that Mexico is doing to develop a criminal justice system based on the rule of law.

As long as Mexican criminal organizations are able to control access to the lucrative market for illicit drugs in the United States and the domestic Mexican drug market, amnesty will not change the underlying dynamics fueling the current extreme violence in Mexico. The bit-players in organized crime syndicates cannot simply resign. Attempts to leave will likely be handled violently by the groups—the criminals’ version of plata o plumo (“bribe” or “bullet”)—and what economic and social support will replace what the gangs offer to their members. And even if some appreciable number of offenders claimed amnesty, the gangs inevitably will recruit, willingly or otherwise, replacements.

Most importantly, broad-ranging immunity for violators would directly undermine Mexico’s project to develop an impartial and effective criminal justice system. At its core, the rule of law rests on the notion of even-handed application of the law and accountability for those who break the law.

Amnesty would create a generation of people who “got away with it,” and create an expectation that future violators could someday receive their own amnesty. There is also little to guarantee that recipients of amnesty would not return to criminal activity down the line—if not immediately. In short, amnesty not only would fail as a practical matter in the short run, but could prove significantly detrimental to Mexico’s development over the long term.

Instead of legitimating the impunity from prosecution that in effect exists today, AMLO should embrace and further the historic challenge of reforming and strengthening Mexico’s criminal justice system. Despite the impressive economic and social development of Mexico over the last 30 years and democratic reform efforts highlighted by the progress in implementing a trusted and fair electoral system, the principal institutional failure in Mexico pertains to the rule of law.

Action is required on multiple fronts to reverse this situation. But a key first step is reforming the Procuraduria General de la Republica (PGR). None of Mexico’s recent Presidents, nor any of its political parties, have confronted the congenital weaknesses built into the PGR. Present reform efforts focus on replacement of the inquisitorial system with an adversarial one. While laudatory on its own terms, this change in “process” will do nothing to address the root problems at the PGR. Nor would establishing an independent “Fiscal General” accomplish much absent creation of an organization under such an official that is professional, competent, and honest.

The inadequacies of reforms to date are obvious. Corruption is endemic; violence continues to be wide-spread; a true civil law system is lacking; and the courts remain weak and unreliable. The only real criminal justice deterrent over the last 25 years has been the prospect of extradition and trial in the United States. But this has applied only to cartel leaders like Chapo Guzman. The vast majority of law breakers have not, and do not currently face the realistic prospect of, accountability for their crimes.

The adverse effects on Mexico are real. Victims of violence and criminality do not receive justice, and public faith and trust in the capacity of government is eroded. The failure to bring criminals to justice generates further violations of the law and more violence.

Over time, corruption and the lack of the rule of law will undermine continued growth of Mexico’s economy. If Mexico aspires to be the fourth of fifth largest economy in the world, as some project could happen in the next 30 years, the business and investment communities will require assurances of predictability and recourse found only in the rule of law and not in a climate tainted by massive corruption and persistent threats of violence.

Of course, the transformation of Mexico’s justice system will not be easy or fast. Systemic corruption plagued the United States one hundred years ago, and the mafia was a potent force in many of its big cities more recently. It was a decades long project to build a justice department, along with law enforcement agencies and a court system, that could capably handle them and deter others including politicians from finding profit in lawlessness.

AMLO campaigned hard against corruption, and central to his election was a growing popular revulsion in an increasingly educated middle class Mexico to the rampant systemic corruption of the rule of law. There is no short cut, but a start has to be made and AMLO was elected to institute it. He should start with a thorough reform of the PGR, or the scrapping of it and the creation of something new, along with the appointment of an Attorney General capable of leading a team of uncompromised and professional “untouchables” to make this happen.

Nathan Bruggeman