Mexico’s Supreme Court of Justice of the Nation (SCJN). Photo: Google


Four justices of Mexico’s Supreme Court of Justice of the Nation (SCJN) on Monday, Sept. 5, refused to approve, as presented, a proposal that seeks to eliminate forced preventive detention (jail without bail) in the country.

The judges who categorically rejected the proposal were Justices Yasmin Esquivel, Loretta Ortiz and Alberto Pérez Dayan, while on the last speech of the day, Justice Juan Luis González Alcántara opened up the possibility of a less radical option: that the Court clarify that “unofficial” preventive detention does not mean “automatic” preventive detention.

In order to eliminate preventive detention, at least eight of the court’s 11 justices would have had to approve the decision.

The proposal was authored by Justice Luis María Aguilar Morales, who said he believes forced preventive detention violates basic human rights and is harmful to the Mexican justice system. According to him, the precautionary measure is the most severe measure that can be applied to a person accused of a crime, so it should be limited — but not outright removed.

“It is not that preventive detention will disappear outright, but that it should only be issued by a judge when the Public Ministry justifies the reasons for applying it,” Aguilar Morales said. “The application of preventive detention must be exceptional and adhere to the principles of legality, presumption of innocence, necessity and proportionality, and must also be subject to a reasonable period. Instead of being a precautionary measure, it could be considered as an anticipated penalty.”

Aguilar Morales’ proposal seeks to replace automatic pretrial detention with justified preventive detention, in which the Prosecutor’s Office has to produce evidence to justify keeping the accused in jail. Experts argue that preventive detention does the opposite: It subjects the detained to public scrutiny and trial by media, and allows more time for authorities to “determine” if the accused is guilty or not.

Esquivel said that she does not agree with the proposal, since it would violate a provision of the Mexican Constitution, in addition to the fact that the Supreme Court would be turning its back on the victims who demand justice.

“Regarding this issue, the in-depth study of this proposal, I do not believe that this Supreme Court of Justice of the Nation has powers to disapply a rule of the constitution or, in other words, fail to comply with an established rule,” she said. “To ignore what is happening in Michoacán, Tamaulipas, Morelos and in many parts of our country would be to turn our backs on the suffering and powerlessness of the families who are victims of homicides, femicides, missing persons and kidnappings. This means turning our backs on all these victims, and not listening to Mexican society that demands justice and peace.”

For her part, Ortiz warned of the risk that the court will become a constituent power if it eliminates informal preventive detention.

“The failure to apply a constitutional norm by the Judicial Power of the Federation is a very delicate issue, which would lead us to question the principle of the division of powers and the principles of the Mexican state,” she said.

In his intervention, Pérez Dayán likewise spoke out against the elimination of automatic preventive detention and only justified its invalidation for fiscal crimes.

After González Alcantara’s intervention, which was the last of the day, Supreme Court Chief Justice Arturo Zaldívar adjourned the session, which will continue on Tuesday, Sept. 6.

Leftist Mexican President Andrés Manuel López Obrador (AMLO), who has encouraged courts to apply pretrial detention against political enemies that he has deemed as “guilty” of white-collar crimes, even though the practice was originally intended primarily for alleged perpetrators of violent crimes, has pressured the SCJN to not eliminate preventive detention, even going so far as to chide the Supreme Court last week for “being disobedient” to his directives.

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