ministers to vote until Thursday

On the second day of discussion in the plenary session of the Supreme Court of Justice of the Nation (SCJN) on informal pretrial detention, most of the ministers spoke out against the excessive use in Mexico of this legal figure and exposed the need to review it, considering it a violation of human rights. 
However, several also differed on whether or not they can amend Article 19 of the Constitution to avoid applying it, so it is not yet clear what the meaning of the final vote will be. 
So far, only four of 11 ministers have openly ruled in favor of eliminating part of article 19, which is the one that includes a catalog with a score of crimes for which automatic preventive detention is granted and without the analysis of a judge. These range from homicide to simple robbery.

Given this lack of definition, Luis María Aguilar, author of the project under review, proposed that the vote be postponed until this Thursday, with some adjustments to try to achieve a consensus among the ministers. For a qualified majority, eight votes are required.
The minister president, Arturo Zaldívar, accepted the proposal and announced that the vote will be held that day from 11:00 in the morning. In addition, he said that another project related to informal pretrial detention, prepared by Minister Norma Lucía Piña, will also be discussed and voted on.
“Should we let the Inter-American Court condemn us?”
In his speech at the end of Tuesday’s session, Zaldívar was the most emphatic in defending the elimination of informal pretrial detention, considering it a violation of the right to the presumption of innocence and freedom. 

“It is a human problem of extraordinary gravity,” said Zaldivar, who insisted on making the difference between informal pretrial detention, which is the one that is applied automatically for committing any of the crimes of article 19 of the Constitution, and the justified one, which is the one that is sought to be maintained, since it does require a case-by-case analysis of the judges, that determine whether or not a person can jeopardize the judicial process or the victims, or flee. 
Unlike other ministers, such as Loretta Ortiz or Alberto Pérez Dayán, who in Monday’s session pointed out that the Court cannot modify or alter the Constitution, since this corresponds to Congress, Minister Zaldívar debated that this modification could be made based on Article 1 of the Magna Carta, which establishes the obligation to protect and promote the human rights of all Mexicans. 
“It has been said here that the Court is not empowered, that constitutional supremacy is involved, that only Congress can reform the Constitution … But, with all due respect, that constitutionalism is exceeded,” said Zaldivar, who recalled that since the 2011 reform, a wide catalog of human rights that the Mexican State must protect and guarantee was incorporated into the Constitution, in its article 1. 
“It has also been said that Article 19 cannot be disapplied, but … then can Article 1 be disapplied? It is not a question of tearing pages from the Constitution, nor are we usurping anyone’s powers, because it was Congress that established in article 1 that human rights are recognized and that they have a higher hierarchy,” said Zaldivar, who wondered what would happen if in the future Congress included torture in the Constitution. the whipping, or slavery. “So this court couldn’t do anything either?” he insisted. 

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In the same vein, Norma Lucía Piña spoke out, questioning the function of the Court if, on the one hand, the Constitution obliges it to protect human rights and, on the other, article 19 of the Constitution itself establishes a series of restrictions “that unjustifiably violate” those rights. 
“What should we do? Let the Inter-American Court of Human Rights condemn us?” the minister asked rhetorically, alluding to another discussion taking place in that international Court, from which a sentence against the excessive use of informal pretrial detention in Mexico will probably come out. 
“Or should we carry out all the interpretative exercises that lead us to comply with what derives from article 1 of the Constitution to protect human rights?” insisted the minister, who announced that her vote will be in favor of Luis María Aguilar’s project. 
Read: Before the Inter-American Court, prosecutors call for the elimination of informal pretrial detention; officials call for Mexico to have a final say
“How many rich people are in informal pretrial detention?”
Zaldívar recalled that in the current accusatory system “it is very easy” to link a person to trial when he is accused of a crime, since there is “very little requirement” for the Public Ministry to provide evidence. 
“To link you need almost nothing, and on top of that link comes almost certainly a preventive detention ex officio. It seems to me a very unfair system,” said Zaldivar, who stressed that this type of prison “has thousands of people in jail” without trial or sentence, and that most are poor. 
“Let’s go to the prisons and see how many rich people are in informal pretrial detention and how many are poor,” Zaldivar said. 
Minister Alfredo Gutiérrez Ortiz Mena also criticized that, at present, with the legal figure of informal preventive detention “a blank check is practically granted to the Public Ministry,” since “the judge only acts as an automaton.”
“Article 19 of the Constitution requires the control judge to be in an attitude of frank indifference to any arbitrariness,” he said. 
Minister Javier Laynez also criticized the informal pretrial detention, noting that an excessive and unjustified use of it “places the citizen in the worst possible scenario.” 
“The standard for linking a person to trial was lowered and the number of crimes of informal pretrial detention increased. This is the most dangerous thing for the citizenry, and this is what legislators must take into account.”
“We cannot be a government of judges”
In her turn, Minister Margarita Ríos Farjat said that since 2008 there has been an abusive use of informal preventive detention, at the same time that there continue to be police forces poorly trained in the face of “the voracity of organized crime.” 
“I share the concerns about the use of informal pretrial detention,” he said, although he then said — in accordance with what was argued by other ministers such as Pérez Dayán — that it is not among the powers of the ministers to disapply it. 
“The Constitution is a forbidden preserve for us, it is not up to us to disapply it, but to harmonize it. It is the maximum social pact and it is up to us to respect that pact and not to disrupt it, because we cannot be a government of judges.”   
So far, of the 11 ministers, only Yasmín Esquivel has openly spoken out in favor of maintaining informal pretrial detention in the Constitution. 
“Informal pretrial detention is not desirable, but declaring it unconventional would have enormous costs for those who demand security. That is, suppressing it would imply a greater cost for Mexican society, since it would mean leaving it at the mercy of organized crime gangs,” he said. 
Minister Loretta Ortiz also spoke out monday to vote against Luis Maria Aguilar’s bill, using the same argument that the Court’s justices are not empowered to modify the constitutional text. 
“It would be a fallacy that, while we are called to protect the Constitution, we now call for disapplication of it,” he said. 
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Original source in Spanish

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