Therefore, the main constitutional concerns have been to assure judges greater independence and to obtain more legitimacy for the most delicate task they perform: the control of the acts of the majority. To this end, ways to appoint them were established to guarantee their autonomy. On the other hand, the expansion of matters of rights necessarily determines the importance of judges, as they are bound to ensure their enforcement. In general, and in spite of multiple variants, the changes introduced follow two directions. As regards the appointment of judges, to deprive the executive or the legislative branches of their power to appoint them and pass it to superior courts, or to a new judicial organ that has appeared in the region: the Council of the Magistracy. And, as regards judicial review, to introduce a Constitutional Court to check on it.
Compare and contrast the new changes
There are two conflicting positions on this issue. The considerations of those who have detected numerous mistakes it is clear that the criminal system and the international system do not yet have good lines of communication linking their aims and their governing formulas. (Allen 1996)
In this condition, a clear agreement was reached with respect to the State’s international accountability derived from the illicit behavior of its agents. Such accountability does not exclude, furthermore, the one which could be derived from the actions of specific individuals.
Moreover a number of flaws which were seen in Mexico old justice system were as following a) flawed formulation of crimes; b) probable operation of criteria by analogy to consolidate crimes; c) International Court capacity to grasp the seriousness of the crimes and, therefore, the provenance of its own jurisdictional knowledge; d) characteristics of the so-called "elements of crimes", the nature of which is still controversial and of those that depend on the solution of some of the most delicate points in the system(Haslip 1999 );e) the regulation of punishments, especially those concerning the regulatory scope of the stipulations that prescribe them, their suitability to punishable behaviors —normative before judicial individualization— and imprisonment, in the form of life imprisonment, on which the Supreme Court of Justice has already ruled; f) more than one trial for the same acts and against the same person: the exclusion of the ne bis in idem principle (a problem that might be solved or mitigated if a "precautionary review" is created before the highest national jurisdiction for those cases in which international criminal court jurisdiction could be involved)(Buscaglia 1998); g) the beginning of the procedure by an ex officio assessment made by the public prosecutor or previous accusation; h) an extensive use of the principle demanding swift trials to prevail, to the detriment of the rule of lawfulness; i) the peripatetic around of local authorities while the investigation, prosecution and proceedings take place; j) the violation of the confined system of constitutional immunities; k) the confidentiality about the accuser’s identity; l) the alteration of the principle of necessary defense; m) the reservation on the elements of proof; n) a special regime on release on bail; o) the delivery of defendants or convicted felons as a common practice; p) the problem of prosecuting offense beyond legal deadlines; q) the feasible custody of the person arrested when the detention exceeds the time established to be served in jail; and r) an optional increase of the resolution’s extension by adding the time served in preventive custody to the total amount of time to be served (Camilleri .et al. 1995).
It is also necessary to analyze other critical observations formulated under the circumstances of Mexico’s abstention in Rome, which are supported by Mexico’s traditional points of view.
Alternative dispute resolution as a way of solving lesser criminal cases
The disappointment to consistently hold to account officials responsible for committing abuses remains a key obstacle to the effective protection of human rights in Mexico. There have been progresses over the last decade in developing mechanisms to expose abuses and enable victims to bring complaints against officials, these have not proved sufficient to overcome impunity (Armstrong 1976).
The lack of public confidence, particularly in law enforcement agencies and the judicial police was a sign of the advances required in this area. Victims of abuses have four basic opportunity for seeking remedy at the domestic level: the courts; internal disciplinary procedures; criminal investigations by the public prosecutors' offices; and complaints to the National Human Rights Commission or one of the 32 local human rights commissions Amnesty International's research shows that victims of serious human rights violations and their families have to face considerable obstacles when filing complaints and seeking justice (Amnesty International 1993). Because of some improvements in accountability mechanisms made in recent years, it became easy to challenge the legality of police conduct and force the authorities to undertake serious and impartial investigations to hold those responsible to account (Cohen 1995).Human communal rights violations, particularly those committed by public security and judicial police, frequently went unreported as victims and their families have little trust in the reliability or fairness of official investigations in the past. Due to which impunity for human rights violations remains the norm and victims and their families denied access to justice and redress.
Investigation of cases versus reliance on confessions
Article 16 of the Mexican Constitution affirms that no one can be detained without a judicial arrest warrant. A warrant should only be issued if a preliminary exploration has demonstrated that a crime has been committed and that the suspect is probably responsible. This process should guarantee that the evidence is charily scrutinized and that any charges laid are based on sound evidence (Amnesty International 1993). However, arrests and prosecutions were sometimes authorized on the basis of insufficient or fabricated evidence. This was particularly the case when judges do not have the time or resources to scrutinize the preliminary investigation and are under intense pressure not to hinder the efforts of police and prosecutors to detain suspects (Armstrong 1976). Sometimes suspects were detained several years after the arrest warrant was issued.
The enforcement rate for arrest warrants differs greatly between states, but in 2000 in Oaxaca and Guerrero States only 15 per cent of warrants were acted on. These impediments mean that warrants were often left on file and then enforced at the discretion of the judicial police or prosecutors (Allen 1996)
They were therefore open to political manipulation, particularly as judges often do not scrutinize the reasons for delays. Many local social or political activists in Mexico faced preliminary investigations or live under the threat of uninformed arrest warrants, sometimes for years (Gay 1977).
The use of torture or ill-treatment to extract confessions or testimony remained a crucial part of many criminal investigations, particularly at state level (Avila 1941).
In spite of compelling evidence presented by defendants, lawyers and independent medical experts that statements have been gained through coercion, prosecutors and judges routinely fail to institute a separate and impartial inquiry into the defendant's allegations (Cohen 1995).Judges often did not take steps to assess the physical condition of a defendant brought to court unless the defendant and defense lawyer specifically raise the issue. Once a complaint of torture had been officially filed, a defendant had to overcome enormous obstacles to demonstrate the substance of their allegations, and even this may not be enough to ensure that evidence gained through torture is ruled inadmissible in court. (Avila 1941)
The malfunction of legislators and courts to end reliance on the first statement made to the public prosecutors as the prime evidence continues to encourage the widespread use of torture as an investigative technique. The federal government highlighted judicial reforms aimed at ensuring that only those statements made before a judge in the presence of a lawyer can be used as evidence (Bailey 2000)
Recommendations to the Mexican government
The ultimate end of constitutional reforms has been the achievement of greater legitimacy, efficiency and stability for the different democratic regimes. Stability, as a system
feature, depends on the degree of a government’s legitimacy and efficiency. If one administration has legitimacy and meets the community’s objectives, it will tend to stability; on the contrary, inefficient authorities, regarded as illegitimate by the people, will not be able to stay in government.
As a result of above research it can be recommended to the Mexican government to ensure the compliance with Mexico’s obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by establishing a system of regular visits, reporting and follow-up by an independent national mechanism, in which diverse representatives of civil society play an active role, to places of detention .The criminal procedural structure reforms should be effectively implied to guarantee that federal and state judiciaries vigorously uphold international fair trial standards. All evidence gathered in the prosecutor's preliminary research should be subject to effectual judicial control and rigorous testing, including through cross-examination in public hearings before a judge.
Take immediate steps, in line with the new constitutional reforms, to ensure that judges proactively and impartially assess the circumstances under which suspects are held in order to guarantee that any evidence of torture or other ill-treatment, illegal detention, coercion, or failure to ensure effective access to legal counsel, family or medical assistance is impartially and effectively investigated and where appropriate sanctioned. It should be ensured that judges actively guarantee the equality of arms between defense and prosecution at all stages of the judicial process and uphold the presumption of innocence and all other due process rights. The Mexican government should reinforce and guarantee the practice of the reforms so to ensure that filing a complaint is not excessively costly or time consuming; that police and prosecutors carry out impartial, prompt and thorough
investigations; that victims have the right to receive independent legal advice; and that victim are adequately protected from reprisals.
Conclusion
This report highlights some of the failings and flaws in the public security and criminal justice systems that were practiced in past in Mexico. This result in human rights abuses
including arbitrary detention, torture, ill-treatment, denial of due process and unfair trials, and a persistent failure to enforce existing legislation, continuing political interference in the administration of justice, and widespread impunity for those responsible for human rights abuses.
The failure of Mexico's criminal justice system to ensure security or justice had been widely documented by national and international human rights organizations and academics. In my view and through the research it is evident that there was a wide recognition that the justice system is not serving society adequately and needed substantial reform to ensure effectiveness and respect for the human rights of both criminal suspects and victims of crime. However, legal reforms are an obligatory but not sufficient condition to ensure respect for human rights. The research reveals that real change depends on the efficient and unbiased application of appropriate legislation in which the protection of human rights is fully integrated.
In my opinion it is time for the new federal government and legislature, as well as state governments and legislatures, to retort to the desires of Mexican society and ensure that law and practice is reformed at federal, state and municipal levels to guarantee equal access to justice and respect for human rights.
References
Allen, F. A. 1996, The habits of legality: criminal justice and the rule of law.
Americas Watch 1992, Brutality Unchecked: Human Rights Abuses along the U.S.Border with Mexico.
Amnesty International 1993, Mexico: the persistence of torture and impunity.
Armstrong, T. R. and K. M. Cinnamon 1976, Power and authority in law enforcement.
Avila Camacho, M. 1941, The purposes of justice in Mexico.
Bailey, J. J. and R. Godson 2000, Organized Crime and Democratic Governability.
Bopp, W. J. 1992, Principles of American law enforcement and criminal justice.
Buscaglia, E. 1998, Obstacles to Judicial Reform in Latin America. Justice Delayed
Camilleri, J. A., A. P. Jarvis, et al. 1995, The state in transition.
Cohen, D. 1995, Law, violence, and community in classical Athens.
Gay, W. G. 1977, National Institute of Law Enforcement and Criminal Justice.
Haslip-Viera, G.1999, Crime and punishment in late colonial Mexico City.
