Mexico’s Judicial System is Modernizing with Digital Justice

02/10/21 – The following work is an investigative piece by Justice in Mexico Training Coordinator Janice Deaton.

Introduction

The COVID-19 pandemic has disrupted all sectors of society in Mexico, including its criminal justice system. Judicial powers throughout the country, which administer the state and federal justice systems, have had to modernize with new and updated technologies as they migrate to digital administration of justice. Many envision the potential of digital justice to broaden access to justice, but caution against further exclusion and marginalization of vulnerable groups.

Closure of Mexican Judicial Powers

On March 17, 2020, Mexico’s Health Secretary (Secretaría de Salud) issued an order closing all non-essential government offices, including the courts.  The administration of justice in Mexico came to a standstill. Hearings were postponed with the expectation to resume them when conditions allowed and the pandemic ended. As weeks turned into months with no end in sight, however, judicial powers had to balance public health and safety with fundamental legal rights.  This led to an acceleration of digital administration of justice, for which some states were more prepared than others.

Many state judicial powers initially relied on remote technology such as videoconference to resolve matters not requiring hearings or in-person appearances. In-person hearings were held for only the most urgent of matters, such as domestic violence and evictions. In the criminal justice system, defendants remained in custody, awaiting resolution in their cases.

Some States Are More Prepared than Others

On August 10, 2020, courts throughout the country reopened to a backlog of cases. Social distancing and other conditions of the pandemic required the judicial powers of each state to incorporate some form of technology in their administration of justice. Some states such as Nuevo León, Aguascalientes, and the State of Mexico, were able to accelerate the transition to digital administration of justice because they had already been using the technology in other facets of the administration of justice. For example, the judicial power in Nuevo León implemented electronic filing of legal forms and remote hearings in 2016. In May 2020, the judicial power in Nuevo León opened its “Virtual Courthouse” to the public, with an instructional video on YouTube. In 2018, the State of Mexico implemented its virtual court by employing electronic signatures and resolving certain disputes on-line. The Coahuila Judicial Power (Poder Judicial del Estado de Coahuila de Zaragoza) set up an electronic mailbox on its website to accept legal documents or forms 24 hours a day. Its implementation was completed on August 17, 2020.

As of August 2020, six months into the pandemic, the federal judicial power and 21 state judicial powers were holding hearings through videoconference. However, in criminal matters, only Nuevo León and Coahuila provided remote public access to hearings, raising concerns of public access to hearings (publicidad). Although there has been progress, there is still no national uniformity in the administration of justice or public access to justice during the pandemic.

The technologically-advanced judicial powers of some states have been assisting other states that are new to digital justice. For example, when the judicial power in Jalisco initiated its virtual justice program in July 2020, judicial powers in Nuevo Leon, Aguascalientes, and the State of Mexico provided assistance.

In spite of good progress, there remains a lack of uniform implementation of digital justice as judicial powers continue to await an over-due National Code of Civil Procedure. This resulting lack of coordination between the federal judiciary and the 32 states and entities is paramount among the challenges of digital justice.

Current and Pending Legislation

On March 18, 2014, the Mexican legislature issued a National Code of Criminal Procedure (Código Nacional de Procedimientos Penales , CNPP) that applies in federal cases throughout Mexico, as well as in each state and Mexico City. Article 51 of the CNPP provides for the use of digital technologies in criminal justice, including videoconferences. Three years later, the September 15, 2017, constitutional reform provided the Mexican legislature would draft a national, unified code of family law and civil procedure, whose ambit would include legal standards, norms, and procedures for the digital administration of justice. Congress agreed that, during the following 180 days during which time it would draft a new code, the current code would remain in place. 

In spite of Congress’s agreement to draft and approve a new, unified code of family law and civil procedure in 2017, it has not yet happened. This code will establish rules and standards for digital justice nationally. In the meantime, states are prohibited  from issuing their own codes, rules, or regulations in the interim period because, as the Supreme Court of Mexico (Suprema Corte de Justicia de la Nación, SCJN) has held on two occasions, this would invade the exclusive purview of Congress. This leaves the state judicial powers unable to ensure their use of digital technology is in compliance with yet-unknown standards on appeal.

Constitutional reform proposals have been brought to the floors of Congress. On June 3, 2020, the president of the Justice Commission in the House of Representatives, Pilar Ortega, along with Representative Janet Melanie Murillo Chávez, presented an Initiative for a National Code of Civil Procedure to the floor. While the Ortega bill mentions digital or electronic administration of justice, it does not provide standards or norms. 

Senator Ricardo Monreal Ávila proposed a different constitutional reform on July 8, 2020. According to the MORENA party (Movimiento Regeneración Nacional), Senator Monreal’s proposal specifically addresses digital platforms, and attempts to provide easy access to digital justice, through the use of information and communication technologies.

These are not the only proposals being considered. Congress is currently evaluating over 24 constitutional reform initiatives  to ensure justice administrated through digital platforms conforms with Mexican constitutional and human rights standards. Additionally, the Federal Judicial Council (Consejo de la Judicatura Federal, CJF), which oversees and administers the federal judicial branch, (excluding the Supreme Court of Justice and the Electoral Court) has issued several General Agreements regulating the integration of electronic files and the use of videoconferences in federal jurisdiction. In June 2020, it issued General Agreement 12/2020, with criteria for the use of video conferences and electronic filing in all federal matters, including criminal justice. This does not negate the need for a new civil procedure code, however. There will not be uniform guidelines or norms governing this crucial area of law until a new civil procedure code is legislated and passed for state judicial powers.

Creativity, Patience, and Thinking Outside the Box

Academics, think tanks, civil society organizations, and judicial operators have attempted to fill gaps in legal standards and norms by producing webinars, and writing guides or manuals to aid judicial powers as well as litigants and judges.  Judicial operators generally agree digital administration of justice requires flexibility, creativity, and patience. They agree vast disparities in resources throughout the country, from access to infrastructure and the internet, to the consumer power to purchase the tools required for such access, require new approaches to justice. As retired Supreme Court Justice José Ramón Cossío  stated, “We are not building a utopia (…) We must think about how we bring the greatest number of tools to the greatest number of people, to resolve the greatest number of conflicts in the best possible way.” (“No estamos construyendo una utopía (…) Debemos pensar cómo acercamos el mayor número de herramientas al mayor número de personas, para resolver el mayor número de conflictos de la mejor manera posible.” Translation by author)

In Chile, Leonardo Moreno, an instructor and senior researcher with Justice in Mexico’s OASIS project, co-authored a manual, “Technology, Criminal Process, Hearings and Oral Trial.” It was published in collaboration with Alberto Hurtado University (Universidad Alberto Hurtado) and CEJA (Justice Studies Center of the Americas, Centro de Estudios de Justicia de las Américas), on June 6, 2020. The manual offers a broad approach to justice administration during the pandemic, and emphasizes flexibility and creativity. The authors suggest varied approaches to case management, from rescheduling hearings where defendants are not in custody, to holding remote hearings where possible. There might be cases that are processed in a hybrid manner, with certain witnesses appearing in-person and others remotely. Where internet is not available, telephones can be used as long as it is possible to confidently identify the witness. 

The think tank México Evalúa is a leader in the study of the use of technology in the administration of justice. In October 2020, building on their long-term research project on digital justice, México Evalúa published its “Guide to Good Practice on the Use of New Technologies in the Administration of Justice” (available here in English  and Spanish.) The manual focuses on the potential of technology to broaden access to justice while checking its capacity to further marginalize vulnerable groups. It also provides good policy practices for judiciaries or judicial powers, as digital justice becomes a permanent part of Mexican justice. The guide concludes with recommendations for the judicial powers, based on its case studies and research. As Laurence Pantin, the Coordinator of the Transparency in Justice project at México Evalúa says in her introduction to the manual, “Our intention is to offer a referential guide … to the various dilemmas that judiciaries face when they promote the use of new technologies, not only to expand access to justice, but also to make proceedings more efficient, faster and/or less costly or, ultimately, to guarantee the service of remote administration of justice under the circumstances we find ourselves in this year.”

Newspapers and opinion writers have also weighed in. In his editorial for El Universal, Miguel Carbonell offers various ways digital justice can save time and resources, including providing direct public access to legal forms, streamlining certain processes and lowering legal costs. He also highlighted four tools each judicial power needs in order to implement digital administration of justice. These include: access to file complaint or initial filings, with availability 24 hours a day; electronic filing system available to litigants; telephonic or videoconference hearings; electronic signatures; and a reduction of “red tape.”

OASIS’s Contribution

On July 29, 2020, Justice in Mexico’s OASIS project presented a webinar on fundamental rights in the administration of justice during the pandemic. Three OASIS instructors, from Chile, Mexico, and the United States, presented challenges and successes in the administration of justice in their respective countries since the COVID-19 pandemic began. 

Jesus Romero, from San Diego, California, said the closure of courts is denying fundamental rights to defendants, especially those who are detained pretrial. Mr. Romero mentioned several potential rights violations, including the Confrontation Clause of the Sixth Amendment. In the United States, the right to confront witnesses means confront in person, with face-to-face cross examination.  Confronting witnesses or the accused via video or the internet would violate the Sixth Amendment rights of the defendant.

Mr. Romero explained that the California judicial system has made various adjustments in response to the pandemic, including allowing money-based bail to be eliminated in certain cases. 

Leonardo Moreno, from Santiago, Chile, explained there are some hearings and cases that can easily be resolved remotely, without the need for any in-person hearings. With trials or more complicated hearings, Mr. Moreno emphasized the need for legal standards covering the admission of evidence, use of prior statements to impeach or refresh recollection, and other litigation tools typically used. 

Iker Ibarreche, from Mexico City,agreed the lack of uniform code or regulations governing digital administration of justice is a paramount challenge. Mr. Ibarreche said each state is proceeding based on procedures it believes comply with the federal constitution, creating as many approaches to justice during the pandemic as there are states in the Republic of Mexico. This makes it difficult for litigants to prepare for hearings since the requirements change, depending on which jurisdiction a case is under. Further, this lack of a uniform code means there is no assurance that the cases will be upheld or affirmed on appeal. Thus, when the cases arrive in front of the federal tribunals or the Supreme Court, Mr. Ibarreche continued, they might be reversed on appeal and result in a “waste of time.”

All three presenters agreed on the need for litigants and parties to conduct themselves ethically, and testify in accordance with the law without notes or coaching from others. This is even more true with the use of videoconferences where it is difficult to monitor all conduct off-screen.  OASIS is now working in collaboration with the American Bar Association’s Rule of Law Initiative (ABA ROLI) to publish a practical, hands-on manual on best practices in digital justice for litigants and judges. The manual will address the challenges and successes litigants and judges have encountered during digital hearings. This includes minimum technological requirements; proper use of cameras and microphones; the use of exhibits and prior declarations; the regulation of witness behavior, and other issues. OASIS expects to publish the manual in the Spring of 2021.

Conclusion

Mexico is undergoing a modernization of its judicial system that is here to stay.  Justice system operators envision digital justice to positively transform Mexican system of justice, making it more accessible and user friendly for the nation’s citizens. If so, Mexican citizens will find their judicial system more accessible and more user-friendly, which would in turn lead to a stronger judicial institution.

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Diario Oficial de la Federación. Acuerdo General 12/2020, del Pleno del Consejo de la Judicatura Federal. June 12, 2020. 

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COVID-19’s impact on indigenous women in Mexico

10/09/20 (written by vrice) – While COVID-19 has affected various sectors of the Mexican population, indigenous communities—and especially women—have been particularly impacted in the wake of pandemic austerity measures. Budget cuts to Indigenous and Afro-Mexican Women’s Shelters (Casas de la Mujer Indígena y Afromexicana, CAMIs) have led indigenous women to mobilize and increasingly accuse the government of negligence. This unrest challenges claims in President Andrés Manuel López Obrador’s (AMLO) recent government report that his administration has effectively supported women and indigenous communities during the pandemic.

Members of the “La Abuela Sabia” CAMI in Ayutla de los Libres, Guerrero. Photo: La Dekonstrucción
Members of the “La Abuela Sabia” CAMI in Ayutla de los Libres, Guerrero. Photo: La Dekonstrucción

Coronavirus rates in indigenous communities

Approximately 21.4% (25 million) of Mexico’s 120 million citizens are indigenous. Since the outbreak of COVID-19, 1,882 deaths and 15,390 cases of the coronavirus have been registered in Mexican indigenous communities. This data translates into a 12% mortality rate from COVID-19 for indigenous Mexican communities, compared to the national average of 10%. The country currently has the fourth highest number of deaths from coronavirus in the world (79,088). 

Indigenous women face disproportionate vulnerabilities 

Health and Education 

The lack of hospitals in indigenous communities, coupled with pandemic travel restrictions, make seeking medical care even more difficult than for the non-indigenous population. These factors further threaten indigenous women’s access to sexual and reproductive healthcare. Indigenous women already have higher infant mortality rates, at 3.3 deaths for every 1,000 live births, compared to 2.2 deaths for non-indigenous women. Given these rates, the prenatal care and birthing assistance provided by CAMIs becomes even more indispensable. In addition, 19.9% of indigenous populations lack access to water and 24.6% do not have sewage systems. Compliance with COVID-19 safety measures, like frequent hand washing, is unfeasible without access to these resources. Further threats to indigenous women’s health arise from gender based violence. According to the United Nations Educational, Scientific and Cultural Organization (UNESCO) México, the rural location of most indigenous communities impedes the ability of women to escape increasing domestic violence rates during pandemic lockdowns. 

COVID-19 is also having a significant effect on the education indigenous women receive. In indigenous communities, 23% of individuals are already illiterate, compared to 4.2% in the general population. Women in indigenous communities also have even fewer years of schooling than indigenous men, whereas the inverse is true amongst the non-indigenous population. While the average woman in Mexico receives 9.1 years of schooling, indigenous women receive only 6.2 years. School closures due to COVID-19 may increase the rates at which indigenous children abandon their studies, particularly indigenous girls, as has occurred during past pandemics according to UNESCO México. The government is currently pursuing a “Learn from Home” (Aprender en casa) program where students can watch classes on television or access them via the internet. It is also worth noting that only 40% of indigenous communities have 4G coverage, meaning the majority of individuals cannot attend online classes. 

Income and Employment 

Studies by the National Council for the Evaluation of Social Development Policy (El Consejo Nacional de Evaluación de la Política de Desarrollo Social) indicate that 80% of indigenous Mexicans work in the informal economy. As a result, they do not have access to benefits like unemployment insurance or labor protections. Coronavirus lockdowns have also hindered activities in the informal sector, leading to a loss of vital income for survival. UN Women and UNESCO identify how this diminution of income disproportionately impacts the food security of indigenous single mothers. 

Closures exacerbate the already disproportionate access of indigenous women to the labor market compared to non-indigenous women. Only 26% of the former participate in some form of labor compared with 46% of the latter. Moreover, stay at home orders have increased the amount of unpaid, domestic labor with which indigenous women are tasked. Nearly 65% of indigenous women 12 years of age and older perform this uncompensated labor, compared with only 35.3% of indigenous men. Financial vulnerability is heightened by how even before the pandemic, indigenous individuals earned monthly wages 45.5% lower than non-indigenous individuals. Indigenous women earn less than their male counterparts, making 3,840 pesos ($171.30 USD) each month compared to males’ 4,155 pesos ($185.35 USD).  Indigenous communities are also more susceptible to financial burdens from medical treatment for COVID-19 and other health ailments. Approximately 82% of the non-indigenous population possesses social security, which provides healthcare, while over 77% of the indigenous population does not. Thus, the 69.5% of the indigenous population currently living in poverty is likely to increase due to COVID-19.

Resistance from Indigenous Communities

On May 11, amidst rising COVID-19 death rates and AMLO’s announcement of austerity measures, indigenous artisan women gathered outside the National Palace in Mexico City to protest for government assistance. Demands ranged from potable water to economic aid, as lockdowns have shut down the informal economy on which many of these women rely for income. Francisca de la Cruz, coordinator of the CAMI of Ometepec, in the state of Guerrero, reflected the demonstrators’ frustrated sentiment, stating that the government does not prioritize the problems of indigenous women. Global NGOs like Amnesty International rallied behind the rights of indigenous women during the pandemic, by releasing a letter template to send complaints about the suspended CAMI funding to Mexico’s Minister of Interior. AMLO’s failure to issue government assistance to indigenous communities, while simultaneously advancing construction on the Maya Train (Tren Maya) during the pandemic sparked additional unrest and civil resistance.

Indigenous artisan women protesting outside of the National Palace in Mexico City on May 11, 2020 to demand financial support during the COVID-19 pandemic. Photo: The Washington Post.
Indigenous artisan women protesting outside of the National Palace in Mexico City on May 11, 2020 to demand financial support during the COVID-19 pandemic. Photo: The Washington Post.

The Government’s Response 

President Andrés Manuel López Obrador (AMLO) announced COVID-19 austerity measures at the end of March, which included the indefinite suspension of the Indigenous Rights Program (Programa de Derechos Indígenas) budget. This program is managed by the National Institute of Indigenous Peoples (Instituto Nacional de los Pueblos Indígenas, INPI) and helps fund 35 Indigenous and Afro-Mexican Women’s Shelters (CAMIs). These spaces are often the only sources of legal and medical aid for indigenous and Afro-Mexican women. A third of the CAMIs were forced to shut down in May due to a lack of funding. They have since received only half of the 30 million pesos ($1,373,445 USD, approximately $25,000-40,000 USD per shelter) originally earmarked for them. The National Network of Shelters for Indigenous Women denounced the budget cuts for reducing the amount of resources available to women amidst increasing rates of domestic violence during COVID-19 lockdowns. According to Mexican federal authorities, the first three weeks of lockdown saw a 30-100% increase in violence against women.

On September 1, AMLO issued his second government report, which cited significant support from his administration for indigenous communities and women during the COVID-19 pandemic. News outlet Animal Político critiqued how the report did not mention that only half of the original budget was distributed, or that one-third of CAMIs were forced to close. Echoing the sentiment of feminist activists, Animal Político argues that the government’s failure to financially support CAMIs contradicts AMLO’s statements that services for women experiencing domestic violence are “essential” during the pandemic. Moreover, the report fails to cite any statistics to justify its claim that government support was provided to CAMIs to continue providing aid for indigenous and Afro-Mexican women experiencing gender-based violence (e.g. consultations, translations, case follow-up). The report claims that 30,430 women received such support through CAMIs during the pandemic (from September 1, 2019-June 30, 2020), even though a footnote on the document reveals this data is solely from the last quarter of 2019. Thus, the statistic provides no insight into the care women received via CAMIs during the outbreak and augmentation of COVID-19 rates. 

The government defended itself against these accusations of neglect by promoting its “Guide for Assistance to Indigenous Communities and Afro-Mexicans during the health emergency created by the SARS-CoV-2 (COVID-19) virus” (Guía para la Atención de Pueblos y Comunidades Indígenas y Afromexicanas ante la emergencia sanitaria generada por el virus SARS-CoV-2 (COVID-19)). Initially issued in Spanish on May 8, the guide was released on May 21 in 35 indigenous languages to make information about COVID-19 and safety precautions more widely accessible. These indigenous language versions were released almost three months after the first COVID-19 case was registered in Mexico. During a press conference in the National Palace at the end of August, Adelfo Regino Montes, the head of the National Institute of Indigenous Peoples (Instituto Nacional de los Pueblos Indígenas, INPI), praised the guide for its crucial role in preventing the spread of COVID-19 in indigenous communities. However, as there are 68 recognized indigenous languages in Mexico, the report is only available in a little over half of these.

As COVID-19 rages on, inadequate government assistance threatens to amplify the obstacles indigenous Mexican women already face in regard to education, health, income, and employment.

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