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Presumed Guilty

In the Basement of Mexican Justice, No One is Innocent

by JOHN ROSS

"For my friends, anything. For my enemies, the law…"

Oscar Benavidez, dictator of Peru (1933-40)

Mexico City.

The Story of Mexican Justice begins in the basement of this nation’s Supreme Court building with a "Tzompantli" or Aztec skull wall constructed by muralist Rafael Cauduro. One mounts the staircase and views panels depicting the "sotano" (basement) where the dirty work begins. Files are scattered everywhere, wrinkled documents are pasted to the wall. The faces of disappeared citizens float ghost-like above the disheveled piles of paper in which justice is entombed. Mexican justice is founded on the presumption of guilt – the so-called Napoleonic Code – and the proof of innocence is often buried in these forgotten files.

As one steps up the stairs to the first floor, the mural graphically illustrates the Gran Guignol of Mexican torture: police are seen stuffing a suspect’s head down a toilet, a technique known as "the poso" or "well"; a half-naked woman screams silently as agents force a bottle of mineral water up her nostrils, the "Tehuacanazo." A body lies crumpled into a fetal position near the top of the stairs. Others are hung up on hooks like freshly butchered meat. A sign hidden in the shadows reads "Auschwitz."

Between the first and second floors, Cauduro’s mural recreates the 1968 student massacre in the Tlatelolco housing complex a few blocks north. An inert student is sprawled on the ground, his book bags scattered around him. The discarded shoes of the dead litter the plaza floor where nearly 300 died under the guns of the military and police. The turret of a tank rears its hyena head above the chaos searching out fresh victims.

Between the second and third floors, Cauduro has painted a cut-away of a prison, perhaps the infamous Lecumberri Black Palace where the student leaders who escaped death were jailed. Prisoners hang on the bars, their souls flying about like anguished bats. Demonstrators outside in the street advance, throwing rocks at the prison walls upon which is etched a banner calling for "Liberty For All Political Prisoners!" The names and initials of those who have been taken are scratched into the building’s wall, which has been stripped back to rough granite.

Cauduro’s mural is an amazement both because of the starkly realistic manner in which it is drawn and for its placement here in the halls of the Supreme Court of Justice of the Nation (SCJN) where injustice and impunity are so often the order of the day. Each of the four staircases at the corners of the squat, three story SCJN building are alive with murals, one by the immortal Jose Clemente Orozco, but none match Rafael Cauduro’s audacious cry for justice.

Honeycombed with marble hallways and barricaded behind a huge bronze door, the Supreme Court building was completed in 1935 and stands at the left hand of the National Palace that faces out on the great Zocalo plaza, the heart of the Mexican body politic, and from which the executive branch administers the affairs of state. The placement of the Supreme Court of Justice of the Nation has political significance: historically, the SCJN has been the handmaiden of the Mexican government doing the bidding of whichever president holds power. This has not always been as ominous as it sounds.

In the 1930s under Lazaro Cardenas (1934-1940) the Supreme Court took the initiative for the expropriation and eventually the ratification of the nationalization of Mexico’s petroleum industry, then the property of Anglo-American owners. But under the rabidly anti-communist regime of Gustavo Diaz Ordaz (1964-70), the Court granted the President a free hand to crush the student movement as Cauduro has drawn with such frightening accuracy on the walls of the SCJN.

Today, the contradictions of the aberrations portrayed in the mural and what actually transpires inside this hallowed precinct are more dramatic than ever. Judicial reform finalized in 2005 gave the justices jurisdiction to review the questionable validity of lower court decisions involving human rights abuses and the court has become the destination for the final resolution of long-standing social grievances. Social justice groups deposit their demands upon the building’s granite exterior in vivid "pintas" that clean-up crews quickly remove.

On the first Saturday of each month, the Mothers of the Disappeared make a pilgrimage to the Supreme Court of Justice to insist upon the return of 572 prisoners who vanished into government lock-ups during the 1972-78 "dirty war" that extended its bloody hand from the coast of Guerrero to Monterrey and the Sierra of Chihuahua in the north of the country. Farmers, sometimes naked, parade across the esplanade to demand the return of land taken from them in disputes that have festered for decades. Nahua Indian militants from the Popular Front for the Defense of the Land (FPDT) clash their emblematic steel machetes and call out for the release of political prisoners taken in 2006.

Last week (July 4th) disgruntled teachers erected a tent city on Pino Suarez Street in front of the Court. The lives of hunger strikers ebb away just a few meters from the great bronze doorway behind which the justices weigh the fate of the Mexican Electricity Workers Union (SME), which President Felipe Calderon seems determined to dismember.

Mexico’s Supreme Court is composed of 11 justices – one serves as chief justice – and the court is subdivided into two "Salas" or panels of five judges each that receive the cases for review. Members serve one 15-year term and are appointed by the president and confirmed by the Senate much as in the U.S. but unlike that distant neighbor nation, cases here are decided on an individual basis – one decision does not serve as a precedent for another, hopelessly burying the high court beneath a slag heap of unfinished business.

Nonetheless, the operations of the Court are slowly modernizing. Forthcoming decisions – "projects" – are now posted on the Internet before they are discussed and voted on in the "Salas" and many become the focal point of controversy and acrimony even before they are handed down by the Court. A recent skein of controversial decisions has provoked high dudgeon and sometimes even exaltation and celebration.

This July 7th, the Supreme Court of Justice of the Nation unanimously voted up a project posted by Justice Juan Silva Meza that sustained the constitutionality of Calderon’s offensive against the SME. Last October, the right-wing president ordered military and police to occupy over a hundred stations of the state power company ("Luz y Fuerza del Centro") in Mexico City and five surrounding states, pushing workers out of the power plants at bayonet point and dissolving the company, the electricistas’ sole employer. The Court’s decision affirmed the authority of the executive branch to summarily lop off any quasi-state institution or agency that it claims to be damaging the national economy, by such brutish means. The ruling seems to signal the end of the legal road for the union, the second oldest in Mexico.

Workers standing shoulder to shoulder on the steps of the Court building glared in disbelief as the document was read to them by union secretary-general Martin Esparza and an audible groan went up from the 23 hunger strikers bedded down under a tent in the nearly Zocalo. The Court, which is about to go on vacation, moved up the date of the SME decision fearing that if one of the strikers – both Cayatano Cabrera and Ricardo Perez have not eaten for over 70 days – should die, violence could erupt amongst the rank and file.

The July 7th SME decision invoked widespread condemnation. Luis Javiar Garrido, a National Autonomous University (UNAM) law professor, urged the Mexican Congress to impeach the justices, an unlikely turn of events. Writing in the left daily La Jornada, Garrido decried the decision as proof that the Supreme Court of Justice of the Nation had failed to take the rights of workers into account, a justification, in his view, for armed revolution.

In sharp contrast to the broad condemnation for the decision against the SME workers, one week previous, on June 28th, left activists effusively lauded the SCJN’s first Sala for freeing a dozen political prisoners, leaders and members of the Popular Front for the Defense of the Land who had been jailed for the past four years on charges of the "premeditated kidnapping" of Mexico State educational officials. When the officials tried to walk out of a meeting to sort out demands for a new primary school in San Salvador Atenco in April 2006, the Nahua farmers locked the door and tied them to their chairs. 200 supporters of the FPDT were arrested one month later during two days of violent confrontation with state and federal police in which militants, including members of the Zapatista Army of National Liberation’s "Other Campaign" were beaten bloody and dragged off to gaol, two young men killed, and 27 women prisoners were sexually abused while being transported to prison.

FPDT leader Ignacio Del Valle was sentenced to 112 years imprisonment for the "kidnappings" and he and two co-leaders were incarcerated in the nation’s maximum security lock-up while nine others were condemned to 31 year terms and jailed in a nearby state prison.

In freeing the Atenco farmers, the Court chastised Mexico State Governor Enrique Pena Nieto, a frontrunner in the upcoming 2012 presidential race, for charging the protestors with a "kidnapping" they had never commited and thus criminalizing social protest. "The manifestation of ideas and demands for social justice is not synonymous with delinquency," noted Justice Silva Meza.

Contrary to the outrage expressed against the Court’s decision backing Calderon in the SME imbroglio, the left hailed the release of Del Valle and his associates. "This decision represents a reversal of authoritarianism and repression against social movements," veteran analyst Adolfo Gilly wrote in La Jornada.

The battle for the release of the Atenco prisoners played out on an international stage. Among those present in the courtroom was Nobel laureate Jody Williams who won the 1997 Peace prize for her work to ban landmines – 11 Nobel winners signed petitions urging freedom for the Nahua farmers. Indeed only Luis Javiar Garrido seemed less than enthusiastic about the decision, arguing that the justices released the Atenco activists to cushion the blow of the ruling against the SME.

Other recent Supreme Court decisions that were celebrated by the Mexican left included the freeing of three Otomi Indian women sentenced to 21 years for the purported kidnapping of six Federal Investigative Agency (AFI) operatives who were tracking pirate videos at a "tianguis" (Indian market) in Queretero state – the AFI was liquidated by the Calderon government two years ago because of pervasive corruption. The women had already served six years due to Mexico’s draconian application of the Napoleonic Code under which a suspect is presumed guilty until he or she can establish their innocence.

The flagrant inequities built into this process are deftly dissected in the prize-winning documentary film "Presumed Guilty" which tracks the efforts of two young Mexican law students, Roberto Hernandez and Layda Negrete, to free a Mexico City father jailed for murder on grossly manufactured evidence. "In Mexico, injustice is legal," comments Hernandez.

Despite the freeing of the Nahuat farmers of San Salvador Atenco and the three Otomi women, the Supreme Court’s advocacy for Indian rights has zigged and zagged. In 2002, the Court upheld the gutting of the San Andres Accords on Indigenous Rights & Culture signed by the Zapatista Army of National Liberation (EZLN) with then-president Ernesto Zedillo that would have stipulated the limited autonomy of Mexico’s indigenous peoples. 387 appeals filed by Indian communities from 57 distinct indigenous cultures all over the country were rejected by the Court.

The justices again risked public wrath in 2009 when they freed a score of Tzotzil Indian prisoners convicted of the massacre of 45 pro-Zapatista indigenas at Acteal in the Chiapas highlands just before Christmas 1997. Lawyers who took up the defense of those imprisoned established that many were convicted because of forced confessions or simply had not been present during the killings. Others did not understand the charges filed against them.

The Court’s decision to drop charges against the accused killers, most of them evangelical Christians, incited the ire of the relatives of the slain Zapatista supporters and the diocese of San Cristobal de las Casas. Raul Vera, the former bishop, lashed out at the justices as "accomplices of murderers" and human rights groups pledged to take up the matter before international venues such as the InterAmerican Human Rights Court and the United Nations.

Many of those convicted of the Acteal murders were trained by the military and financed by local politicos yet only four low-ranking state officials served short sentences for their roles in the killings. 82 Indians were presumed guilty and jailed for the crimes, many of them still imprisoned. Rather than being assigned new trials, the Supreme Court released those whose sentences had been vacated because of judicial error back into the community. None of the lower court officials responsible for framing the Indians were charged.

Mexico’s Supreme Court of Justice has no indigenous members and most judges appear to be of European descent. Indeed, the first and last Indian to ever sit on the High Court was the Zapotec Benito Juarez, an advocate for secular government who helped frame the 1857 constitution and served as chief justice, and who later became Mexico’s president.

Political balance on the Supreme Court tends to swing right or left depending upon the nature of the issues before the judges. Ultra-conservative Sergio Salvador Aguirre Anguiano heads a group of four judges, including chief justice Guillermo Ortiz Mayacoitia, who can be depended upon to perpetuate the vision of the Catholic Church. On the left, Arturo Zaldivar Lelo, the most recently appointed member of the panel, can count on four liberal votes, including that of Olga Maria del Carmen Sanchez Cordero Davila de Garcia Villegas, an associate judge with striking silver hair as long as her name and one of two women on the Supreme Court. Three unaligned members with conservative backgrounds can swing decisions either way when the full court votes.

Despite the Supreme Court’s conservative tilt, the justices have proven surprisingly liberal on moral issues that provoke the Catholic hierarchy. Two years ago, the Court upheld Mexico City’s abortion-on-demand law by a 10 to one majority and this May, it unanimously ordered the emergency distribution of the morning-after pill to rape victims. If Judge Sergio Vals’ posted project holds up, the Court will soon ratify the capitol’s same sex marriage law and the adoption of children by same sex couples.

But despite the justices’ remarkable openness on such issues, The Supreme Court of Justice of the Nation remains an instrument of oligarchal rule, unwilling to challenge the flagrant impunity that poisons Mexico’s justice system. Although the Court probed human rights abuses during the 2006 civic rebellion in Oaxaca in which roving death squads gunned down 26 opponents of Governor Ulises Ruiz, the Governor escaped all blame.

Similarly, although the repression in Atenco earned the Court’s reprobation, Governor Enrique Pena Nieto and his public security chief Admiral Wilfredo Robledo, walked away untouched.

When Puebla governor Mario Marin ordered the kidnapping of feminist writer Lydia Cacho at the behest of a political crony, the Court refused to take any action against Marin.

The incineration of 49 pre-schoolers in an Hermosillo Sonora government day care center that had been privately contracted out to First Lady Margaret Zavala’s cousin by Governor Eduardo Bours’s regime resulted in no charges being brought against any of those responsible for the holocaust.

Meanwhile, evidence of toxic corruption, unpunished brutality, and impunity worthy of The Untouchables, continues to pile up in the sotano of Mexico’s justice system.

Each afternoon, when the 11 justices of the Supreme Court of Justice of the Nation descend to the basement where their chauffer-driven limousines await them, they must turn a blind eye to the horrors painted upon the walls of the building from which their rulings emanate. Indeed how else can they justify their roles as the instruments of a justice system that continues to presume the innocent guilty and buries them alive deep in the dungeons of power?

JOHN ROSS is the author of El Monstruo.  You can consult him on particulars at johnross@igc.org  

 

 

 

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