By ALEJANDRO ENVILA FISHER
The course taken by Mexico’s Supreme Court of Justice (SCJN) last week on the issue of preventive detention (pre-trial detention without bail) is one more example of how the country’s highest court has been tainted by politics and how its justices have abdicated their responsibility to politicians.
The debate over the use of preventive detention, a controversial measure that the current administration has turned into a political weapon against its opponents, has captured the attention of both media and politics.
But even more controversial is how the court knelt down to the demands of Andrés Manuel López Obrador (AMLO), putting legal precedence, constitutional norms and justice on the back burn to please the president.
Justice Luis María Aguilar, who first proposed eliminating the practices in all cases except those involving violent crimes, eventually withdrew the project at the bidding of AMLO.
The debate also spurred allegations that the court was trying to overreach its powers, attempting to override a regulation stipulated in the Mexican Constitution, when only Mexico’s legislative branch can change constitutional law.
One legal analyst, Diego Valadés, claimed that the court does not have the right to reverse a constitutional ruling, even if it violates basic human rights.
Valadés, who famously — or better said, infamously — was entangled in the 1994 assassination of presidential candidate Luis Donaldo Colosio when he was the head of the Federal Public Secretariat, is also kowtowing to López Obrador and has sowed serious doubts of any hope that Mexico’s justice system will ever return to the path of human rights after having been derailed in 2019 by legislators dedicated to pleasing the head of the executive power instead of serving the public.
Valadés’ argument is absurd because it validates the violation of human rights and is contrary to the Pro Persona principle established in the Constitution. Moreover, it encourages the court to abdicate its responsibility to justice and endorses the violation of the principle of presumption of innocence, which also has constitutional status.
Additionally, his argument ignores the observance of the international treaties signed by Mexico, whose validity also has constitutional rank.
And it dwarfs the court’s power to resolve a conflict of constitutional norms, making it a puppet of the government, as it was in Mexico’s darker, undemocratic past.
In the interest of self-advancement, Valadés has become the spokesman for an ideologue of militaristic authoritarianism.
At this point, all the we can hope for from the court is for it to reassume its responsibility and resolve a contradiction between two articles contained in a fundamental law, articles that revolve around fundamental human rights.
There is no other government body in Mexico with the power and authority to do this, and while Valadés has insisted that the court has no powers, the function of a constitutional court is, precisely, to interpret the constitution, which is why it does have them.
The court does not need to disapply, invalidate or legislate to repeal a constitutional article. Nor does it have to remove from the constitutional text the figure of the informal preventive detention. All it needs to do is compare the weight of the rights of its citizens over the powers defined within the constitution, determining which is more important.
The principle of the presumption of innocence and respect for human rights and international law should be paramount. There are viable alternatives to preventive detention that are more humane and just.
To let the practice of preventive detention stand as is would be to apply the concept of presumption of guilt, following in the footsteps of dictatorships and totalitarian regimes.