Democracy, judicial reform, the rule of law and environmental justice in Mexico.

• Author: Szekely, Alberto

1. ENVIRONMENTAL JUSTICE AND THE RULE OF LAW IN MEXICO

   The long and difficult negotiations leading up to the North American Free Trade Agreement (NAFTA) finally concluded in 1992,(2) but only after the governments of Canada, Mexico, and the United States gave sufficient assurances that they would accommodate the concerns voiced by the environmental communities of the three countries.(3) They did so mostly through the adoption of a parallel 1993 Agreement on Environmental Cooperation,(4) together with the Mexico-United States Agreement Concerning the Establishment of a Border ,Environmental Cooperation Commission and a North American Development Bank.(5)

   During the process leading up to the above-mentioned international conventional instruments, attention was particularly centered on Mexico's poor record of compliance and enforcement of its environmental legislation.(6) It was argued that Mexico's lack of enforcement would give it a competitive advantage over its trade partners and, simultaneously, turn the country into a pollution paradise that would attract industry from north of the border trying to escape from more stringent and costly environmental standards.(7)

   Since the three agreements have been in force,(8) much has happened that is highly relevant to Mexico's environmental legislation, albeit indirectly. Mexico has undertaken minor reforms. Legislative changes in 1996 modestly strengthened the 1988 General Act on Ecological Equilibrium and the Protection of the Environment.(9) The 1992 Forestry Act was also strengthened in 1997.(10) In contrast, little has been done to turn the so-called Federal Environmental Prosecution Office into something more than the mere facade and simulation it has been since its creation in 1992.(11)

   By the end of 1997, political developments in the country seemed to hold the promise for a change in the basic foundations underlying the more-than-questionable record of compliance and enforcement of environmental legislation and, for that matter, of the national legislation as a whole.(12)

   This is due to the fact that the problem of environmental justice in Mexico is closely linked to and the unquestionable result of numerous political realities in Mexico. The lack of environmental justice is part and parcel of the precarious situation of democracy in the country, the bitter realities of the nonempire, the ineffectiveness of the rule of law, and the extremely poor quality of administration of justice in the country.

   All these issues, however, have high priority in the current national public debate, and some modest progress is in the making, particularly as a result of the 1997 summer federal elections.(13)

   How could one expect a decent record of environmental legislative compliance and enforcement in a country where the contravention of the law is the daily rule rather than the exception and where the legal system in general is and has been historically plagued by the following:

   1. A persistent, systematic, and generalized pattern of institutionalized official corruption at all levels and branches of government. Throughout the national territory, widespread influence peddling, graft, racketeering, bribery, payoffs, kickbacks, and abuse of authority exists, which makes it the sixth most corrupt country in the world after Nigeria, Bolivia, Colombia, Russia, and Pakistan, according to a report by Transparency International;(14)

   2. Prevailing impunity and the lack of transparency and accountability on the part of public officials.(15) This impunity is at times acknowledged by some high officials(16) and for others, such as Dr. Clemente Valdes, has even been "legalized" by the governing class through laws designed in such a way that those officials simply do not have to account for or respond to anyone for the ways in which they govern, much less for the manner in which they use and abuse public funds;(17)

   3. A simulated division of powers that still exists in the letter of the law,(18) but in practice has been virtually eliminated;

   4. A Congress that, historically, has been nothing more than a mere rubber stamp mechanism to quasi-legitimize the decisions of the executive branch and has amended more than two-thirds of the articles of the constitution, blindly and obediently following the dictates of the President;(19)

   5. State Governors who even today, in the case of a majority of them, to a large degree serve at the pleasure of the President, despite the federal system of government provided for by the constitution;(20)

   6. Ineffective public institutions that have become dysfunctional to the point of causing a breakdown in governance;(21)

   7. A notorious lack of independence in the judiciary, coupled with prosecutorial incompetence and dishonesty;(22)

   8. Discrimination, inequality, and a systematic denial of justice to the poor majorities,(23) particularly the indigenous peoples,(24) and at the same time, a system of justice that is often up for sale to whoever can pay for it and accessible only to the privileged few;(25)

   9. Systematic police brutality,(26) extra-judicial executions,(27) deplorable incarceration conditions,(28) and widespread torture and violation of fundamental human rights which are establishing a worrisome pattern,(29) despite the increasing activity of non-governmental organizations, which are sanitized by the government;(30)

   10. Governmental cooption of the various sectors of society, such as the professional and workers' unions, forming a corporate system of social control that breeds corruption;(31) and

   11. The largely unchallenged reign, for more than sixty years, of a single political party that has operated as a so-called "rotating dictatorship," staying in power through electoral fraud, that generates favors, and thrives on all of the above.(32)

       As if all of that was not enough, the country's precarious rule of law has been further shattered by the following:

   1. The scourge of drug trafficking and its role in organized crime;(33)

   2. The use of political assassinations by the system, such as those in 1994 of PRI Presidential Candidate Luis Donaldo Colossio, PRI General Secretary Jose Francisco Ruiz Massieu, and of hundreds of opposition party members;(34)

   3. The widespread lack of security and reign of violence in the country, the legal uncertainty in most transactions, and the inability of the institutions to cope with crime, which is increasingly recognized by the government itself(35) and exasperating the public.(36) The proliferation of incidents of lynching and serf help,(37) thus prompting some hard-line sectors to demand the reinstatement of the death penalty(38) and even the suspension of basic rights to criminals;(39)

   4. The operation of death squads (such as the infamous Paz y Justicia in Chiapas), of especially violent police groups (such as the Zorros and the Jaguares in Mexico City)(40) and of other paramilitary groups that participate in rural and urban massacres (such as those in the Ejido Morelia in Taniperlas, Acteal in Chiapas, and Aguas Blancas and El Charco in Guerrero),(41) and the increasing use of army intervention in civil police matters;(42) and

   5. The proliferation of white collar crimes and official financial scandals, as will be discussed below.

      How could there be a good record of environmental observance in such a "fundamentally flawed" system of justice where, according to Jorge Camil, the rule of law is nowhere to be found?(43)

      Consequently, this work, rather than covering in any degree of detail the existential problems of environmental law and justice in Mexico per se, deals with the general and specific impacts on environmental law as a result of the poor rule of law and the lack of administration of justice in Mexico.

2. ELECTIONS AND DEMOCRATIC TRANSITION

   Decades of struggle by civil society and the organized opposition, which for many started with the bloody 1968 student movement repression(44) and wound up with the Chiapas Indian uprising in 1994, eventually resulted in electoral reforms. The impulse for reforms also came about due to the political system's own collapse, itself prompted by presidential authoritarianism and political assassinations during and after the Salinas Administration.(45) Corruption at the highest levels of government, including the family of President Salinas, also ushered in the reforms.(46) The 1997 elections gave Mexico the first semblance of a true and independent Congress; its lower house, the Chamber of Deputies, is no longer under the absolute one party rule, and the opposition parties together can form a majority.(47)

   The metropolitan area of Mexico City, where almost one-fourth of the nation's population is concentrated? as well as many county and state governments and legislatures are now in the hands of the opposition. Former absolute presidential powers are slowly being curtailed to create checks and balances as mandated by the letter of the nation's constitution.(49)

   At the end of 1997, Mexico seemed to be finally heading toward a transition to democracy.(50) The country was slowly moving to what has been called a "renovation of the Mexican State" where, as already pointed out, the rule of law and the administration of justice, which includes a much needed radical reform of the judicial branch, remain at the top of the agenda.(51) Jurist Sergio Garcia Ramirez has stated that "[i]n any case, it seems that the old order has not yet disappeared, and the new one is not yet born. This is what is called an era of transition."(52)

3. AN AGENDA FOR REFORM

   The reform agenda was pushed for by the opposition parties and was initially convened by the federal government.(53) The government, at first, even contemplated some constitutional amendments,(54) but in the ensuing months has been largely stalled by official foot dragging due to several factors:

   1. The adverse results the PRI suffered in the federal elections in the summer of 1997;(55)

   2. The hardening of the government's position in the...