5. A Federal Obligation
In its offensive against criminal organizations, the federal government has left a crucial front unaddressed. Attacks on the constitutional and international right to free expression must be fought at the national level.
When the Calderón administration declared a national offensive against the powerful criminal groups threatening the nation’s stability, it signaled that state and local governments were too weak and corrupt to wage a battle so central to Mexico’s future. But nearly four years after beginning its offensive, the federal government has failed to take responsibility for one of the war’s crucial fronts: the widespread and unpunished attacks that are destroying citizens’ constitutionally and internationally protected right to free expression. The same state and local authorities so deeply corrupted by criminal groups remain largely in charge of fighting crimes against free expression, including murder, threats, and attacks on journalists and news outlets. Their record—a near complete failure to enforce the law in crimes against the press—demands that Congress and the executive branch act urgently to take responsibility for this national crisis.
The federal government has national and international responsibilities to address impunity in violence against journalists. Articles 6 and 7 of the Mexican Constitution guarantee individual rights to freedom of expression and freedom of the press, but rampant violence has effectively precluded Mexicans from exercising these rights. As a signatory of international covenants, Mexico’s government has the obligation to protect the human rights guaranteed in these agreements. The International Covenant on Civil and Political Rights guarantees the right “to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media.” The covenant further requires that governments provide an “effective remedy” for those whose rights are violated. The American Convention on Human Rights guarantees the right to free expression in nearly identical terms and states that every individual has “the right to simple and prompt recourse … for protection against acts that violate his fundamental rights.”
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Yet in the face of obvious, widespread violations of a basic human right, the federal government has not provided effective remedies. The U.N. Human Rights Committee, which evaluates compliance with the International Covenant on Civil and Political Rights, found in March 2010 that the Mexican government had failed to take effective action to protect the press and bring assailants to justice. The committee urged “immediate action to provide effective protection for journalists and human rights activists whose lives and security are at risk because of their professional activities.” It also called on the government to “conduct immediate, effective, and impartial investigations into threats, violent attacks, and murders of journalists and human rights activists and bring those responsible to justice.” In response, Mexican government representatives pledged to create better ways to protect journalists but gave no specifics.
The most significant reforms, those backed by press freedom advocates, would add crimes against free expression to the federal penal code, make federal authorities responsible for investigating and prosecuting attacks on the press, and establish accountability at senior levels of the national government. Despite some high-level promises and legislative activity, primarily in 2008 and 2009, Congress and the executive branch have thus far failed to seriously advance such reforms, leaving the investigation of anti-press crimes in the hands of state and local authorities.
“There is a consensus among the press freedom community that federal authorities can produce a better and much stronger response than states in cases where grave violations of freedom of expression have occurred,” said Luis Raúl González Pérez, general counsel for the Universidad Nacional Autónoma de México, or UNAM, and an analyst who has written extensively on the issue. While the performance of federal authorities has itself been tainted by corruption and negligence at times, they are typically better trained, are subject to greater scrutiny, and have greater financial and personnel resources.
The Inter American Press Association (IAPA), the regional publishers group, has long advocated for the federalization of offenses against freedom of expression. Its press freedom director, Ricardo Trotti, calls federalization essential to the nation’s future as a democracy. Trotti, like González, said state officials “are more vulnerable to pressure from organized crime or political corruption,” which compromises their ability to address crimes against free expression.
A Congressional committee examining attacks on the press was blunter still in assessing state officials’ ability to enforce the law. “The main reason for federalization is that local authorities are often the perpetrators of these crimes,” the committee said in a February 2010 report identifying the federalization of press crimes as one of its strategic goals. CPJ’s own research has found that at least nine of the journalists who have been murdered or have disappeared during the Calderón administration had been actively investigating state or local government corruption.
The Calderón administration has been open to dialogue on the issue in the past; the president and members of his cabinet met with a CPJ delegation in June 2008. The CPJ representatives presented Calderón with a set of principles aimed at protecting freedom of expression for all citizens and creating accountability at the federal level. In those principles, CPJ sought legislation to federalize crimes against free expression and freedom of the press; assurances that federal law would conform to international standards; and reforms to strengthen the authority of the federal special prosecutor for crimes against the press. The federal special prosecutor’s office, created during the Vicente Fox administration with CPJ support, has been one of the few steps taken to address the issue at a federal level. In practice, however, the office has proved largely ineffective.
“The government agrees with the idea of federalizing crimes against freedom of expression,” Calderón told CPJ’s delegation. He pledged to put forward a proposal, but he said it would come in the context of a broad constitutional amendment to address spiraling violence affecting many sectors of society.
Since 2008, the executive branch and Congress have moved in fits and starts to federalize crimes against free expression. Thus far, all of the efforts have fallen short. In October 2008, Calderón did propose a constitutional amendment to make a federal offense of any crime related to “violations of society’s fundamental values, national security, human rights, or freedom of expression, or for which their social relevance will transcend the domain of the states.” CPJ and others expressed concern that broad language allowing the federal government to intervene in cases of “social relevance” could be open to misinterpretation or abuse. That the proposal came in the form of a constitutional amendment further complicated chances for passage; amendments require a two-thirds vote by Congress and approval by a majority of the state legislatures. The IAPA’s Trotti is among those who believe federalization won’t pass if it is dependent on the support of state politicians.
In Congress, other approaches were taken. The committee examining attacks on the press submitted a bill that would have directly changed the federal penal code to include offenses against freedom of expression. Although the bill foundered, the Chamber of Deputies did approve legislation in April 2009 that would have added crimes against “journalistic activity” to the federal penal code and set prison penalties of up to five years for anyone who “impedes, interferes, limits, or attacks” such activities. Sentences would have been doubled if the assailant were a public official. The measure made no progress in the Senate.
The Chamber of Deputies also debated its own version of a constitutional amendment. The proposal, which would have given federal authorities jurisdiction to investigate and prosecute crimes against free expression, stripped out the “social relevance” wording that some had found problematic in the Calderón plan. The measure was approved by the Constitutional Committee of the Chamber of Deputies but progressed no further.
Nearly all of the activity took place before the Congressional elections of July 2009 changed the composition of the legislature. Since then, a lack of consensus among political parties in Congress, an unwillingness to negotiate those differences, and the emergence of other priorities have dimmed the prospects for reform, said UNAM’s González. “Congress has moved at a very slow pace,” he said, and when it has, its approaches have been flawed and incomplete.
It’s unsurprising that legislators have shown little urgency, said Gastón Luken, a Baja California deputy and member of the ruling National Action Party, or PAN. Luken, a supporter of federalization, said partisan gridlock in Congress is derailing many types of legislation. Passage of a measure to fight crimes against the press needs the support of all three major parties in Congress, including the Institutional Revolutionary Party, or PRI, and the Democratic Revolution Party, or PRD. Members of all three parties have expressed support for federalization at times, but bringing them together behind a single piece of legislation has proved elusive. Political calculations, including which party can claim a victory on the issue, have trumped progress so far, Luken said.
Members of Congress also know that federalization is unpopular among political leaders back in their home states, particularly state governors, said Gerardo Priego Tapia, a former PAN deputy who once led the Congressional committee on press attacks. Many of these politically powerful governors see federalization as an infringement on states’ rights, not to mention their own authority. Opposition, said Priego, has been strongest in some of the states with the highest levels of anti-press violence.
With many state-level politicians in league with criminal organizations, Priego said, corrupted officials also have much to fear from federalization. “State authorities don’t want the federal government to take over investigations because those ties may be exposed,” he said. State attorneys general, who are selected by the governors, now investigate nearly all attacks on the press, which means the inquiries can be guided by narrow political considerations, Priego said. Federal authorities can claim jurisdiction only if they conclude the offense is linked to organized crime or if military firearms were involved.
Baja California Governor José Guadalupe Osuna Millán disputed assertions of widespread state improprieties, but said he supports federalization nonetheless. “Violence against the press has become a national problem, and it requires a federal solution,” Osuna told CPJ. The governor, a PAN member, said he believes at least some governors could be persuaded to support federalization. “It is something that will benefit Mexico, create a more transparent system of accountability, and protect citizens’ right to be informed.”
The federalization of crimes against free expression is a central element of reform, but other steps must be taken to bolster the effort. A stronger and more autonomous federal special prosecutor for crimes against the press is vital. CPJ research shows the office has failed to take significant prosecutorial steps in any press crime in its four years in existence. Two recent changes offer some hope. Gustavo Salas Chávez, a former Mexico City prosecutor, was named to the special prosecutor’s post in February 2010, succeeding Octavio Orellana Wiarco, who was perhaps best remembered for making public comments that played down the severity of crimes against the press. Minister of Interior Fernando Gómez Mont and Attorney General Arturo Chávez Chávez also announced that the special prosecutor’s office would operate under the direct supervision of the attorney general, rather than through the attorney general’s human rights division.
UNAM’s González said the attorney general’s office itself should be given greater autonomy, and that prosecutors who deal with press offenses should receive additional training. The creation of a government committee that could provide direct protection for at-risk journalists would help as well, he said. Creation of such a committee, modeled on a decade-old project in Colombia, is being studied in Mexico by the Interior Ministry and has been embraced by a number of press freedom advocates. In Colombia, a committee of government officials and civil society representatives meets regularly to assess the security needs of journalists whose work has put them in danger. In some cases, the committee assigns direct government protection, and in other cases it supports tactics such as relocation. Key to the success of such a committee in Mexico would be the establishment of clear operational guidelines ensuring its independence.
In Colombia, the press freedom group Foundation for a Free Press, or FLIP, was instrumental in creating the official protection committee, as it was with a number of other initiatives credited with reducing anti-press crimes in that country. The Colombian press ultimately spoke as one in pressing the government for these solutions. Mexico’s press community, long polarized, has yet to coalesce around a set of principles that would promote greater security for journalists. “Media and press groups have not come together to exert pressure on officials—they haven’t been consistent,” said IAPA’s Trotti. A vocal and unified approach among Mexican media groups would help put reforms back on the national agenda and generate the sort of public support needed to promote passage.
Supporters of federalization know that it will not end the violence being fueled by widespread drug trafficking, extortion, and other criminal activities. CPJ research has found a number of instances in which corrupt or lax federal authorities have failed to respond to anti-press violence. And journalists’ safety will always be dependent in good part on the overall security situation.
But federalization would send an important message that national leaders recognize the gravity of the situation and are accountable for correcting it. The international community has an inherent interest in having the federal government address this issue: Criminal groups are increasingly transnational, and the fight against their corrosive influences can be addressed effectively only on a broad scale. The more Mexico allows the flow of information to be controlled by drug cartels and dishonest local officials, the more it erodes its status as a reliable global partner.
Despite the shortcomings of federal investigators and prosecutors, they are better prepared than their local counterparts in taking on a national problem. The greater resources available at the federal level offer hope for a more effective response; the higher level of scrutiny serves as a check against the corrupting power of criminal organizations.
When publisher Jorge Ochoa Martínez was killed in Ayutla de los Libres in January 2010, colleagues acknowledged that it could have been the result of a personal dispute. The problem, they said, is that they will never know—and that, in itself, has sown fear and self-censorship. “We just want this investigated to the end, no matter what that end is,” said Juan García Castro, a friend of Ochoa and head of the Guerrero state weekly newspaper association. If it was a personal matter, he said, “we can accept that, but we want an honest investigation.”
And that does not happen in Mexico much of the time because law enforcement, from Guerrero to Tamaulipas, has been taken over by the criminals. “Nothing harms a people more than a government that does not take care of its citizens,” said Armando Prida Huerta, the owner of Síntesis, a chain of regional newspapers, and the head of a press support group called the Foundation for Freedom of Expression “Without federalization of crimes against the press, violence against the media will continue.”