The ABC to understand the Amnesty Law
On September 15, President Andrés Manuel López Obrador sent to the Congress of the Union the preferential initiative of the Amnesty Law, so that some people who are in jail can be released even if they have not served their sentence.
Obviously this proposal has generated controversy, because while some believe that it is a pardon for criminals. Others say it is for those who do not have access to justice.
WHAT IS IT?
Amnesty law aims to grant freedom to people who have committed criminal conduct. It also aims to give new opportunities for social reintegration to those who obtain the benefit.
Amnesty is different from pardon because the latter is simply a kind of pardon that can only be granted by the president. Instead, amnesty has an analysis of the case to determine whether or not it is granted.
WHO IS IT FOR?
Women, indigenous people, and youth are the main focus of the initiative. According to the Executive's proposal, many people belonging to these sectors of society have been forced to commit crimes because of their poverty.
AMLO emphasizes that repeat offenders, kidnappers, people who committed murder, robbery with violence or used a firearm will not be able to benefit from this law.
Indigenous people who have committed any crime; and who have not obtained access to justice with interpreters or specialists who do not know their culture could also obtain amnesty.
In his morning conference on Sept. 17, the president assured that this law, if approved, will benefit the population of scarce resources and that they did not have the opportunity to obtain a fair defense.
What crimes apply to obtain freedom through this law:
Abortion: As you know, in most of the states in the country, abortion is considered a crime and is punishable by jail, both for the person who submits to one, and for the person who executes it, for that reason, the amnesty law considers that women, doctors, and midwives who practice it can be released.
Crimes against health: People accused of petty drug addiction could only be released if it is proven that they committed the crime due to conditions of poverty (indigenous communities that plant opium poppy or marijuana) forced by a family member or partner, as well as unfounded fear by organized crime groups.
Political prisoners: All persons who were imprisoned for belonging to groups with diverse ideologies and who were incited by them to commit minor crimes.
Simple robbery without violence: If the person committed robbery, did not kill anyone and his sentence was 4 years or less, he could also benefit from this legislation.
Drug use: Currently it is only allowed to carry a certain grammage for personal consumption, so this law will make it easier for people imprisoned for carrying up to twice the maximum dose, also go free.
HOW IS IT OBTAINED?
The Attorney General of the Republic will be responsible for giving the green light (or not) to the requests made by those interested in obtaining this benefit. Except in the case of political prisoners, this crime will be handled by the Ministry of the Interior. The request may be made by a family member or a civil organization.
AMLO's proposal reached the Chamber of Deputies, who will have the obligation to analyze it, make changes if necessary, and determine if it is approved or not. As it is preferable, this proposal must be analyzed in 31 days.
If at the end of this period the issue is not resolved, the matter must be the first to be addressed in the next session of the Plenary and if approved or modified it will have to be rotated to the reviewing chamber, which must discuss it and vote on it within the same period and under the same conditions as in the original chamber.
Amnesty law, a good idea poorly drafted
One of López Obrador's most controversial campaign proposals was the Amnesty Law. At that time, his opponents considered it a way to grant "forgiveness" to criminals, which lit red lights in various sectors of society. More than a year later, the Amnesty Law is one of the Executive's priorities during the new session of Congress.
Although at first glance it looks like a well-intentioned measure that could prevent innocent people from remaining in prison, it is insufficient to ensure justice for the most vulnerable groups. Without a total reform of the penitentiary system, the amnesty law is a superficial and isolated effort where the beneficiaries will be only a few hundred.
On the morning of 15 September, the President handed Mario Delgado the Amnesty Law initiative. In the explanatory statement, the president declared "in our legal system, amnesty is an instrument available to the State, through the Legislative Branch of the Union, to grant certain persons who have been indicted or deprived of their liberty pardon for criminal acts, in such a way that they can reintegrate into life in society.
The beneficiaries of this law would be those accused of minor crimes and who are not repeat offenders, including indigenous people who did not enjoy a fair trial because they did not have translators and defenders in their language, women who decided to abort and the doctors and midwives who assisted them, political prisoners and people in situations of poverty or extreme vulnerability who were pressured by organized crime or by their partners to commit illicit acts, such as robbery or drug trafficking.
Those who have used firearms or have been responsible for kidnapping, violence or homicide or for the crimes referred to in article 19 shall not be eligible for amnesty. It should be made clear that the Act does not cover future crimes, but rather crimes for which they were convicted before its promulgation. In addition, no beneficiary of amnesty may be arrested or prosecuted for the same acts.
During the presidential campaign, the president undertook to hold a citizen consultation and roundtables with experts and victims to hear their opinions on the issue. The bill will be discussed in these weeks, but this consultation never took place, while in the Forums for Pacification and Reconciliation held a year ago, victims' families and representatives of civil organizations asked to rethink the measure to avoid impunity and revictimization.
The initiative that the Chamber of Deputies turned to commissions for analysis presents some differences compared to the campaign proposal that Loretta Ortiz promoted in the media. In the original approach, amnesty was part of the peacebuilding strategy within the transitional justice framework. Now, the bill does not propose a reform of the judicial system, nor does it mention the need for transitional justice.
At the same time, the first proposal contemplated processes of clarification of the truth, community reconciliation programs and reparation of the damage, but none of these points is reflected in the document that the president delivered this week to the deputies. Only release is proposed, but there is no plan for reintegration into society or security to prevent criminal groups from retaliating against them.
Perhaps one of the most notable differences is that it was initially envisaged to create an independent and autonomous body made up of citizens, which would be responsible for reviewing and authorising applications for amnesty, as well as monitoring their beneficiaries. In the president's initiative, the Attorney General's Office is the institution empowered to apply it, while for sedition crimes the Ministry of the Interior will determine whether someone is entitled to amnesty or not. Neither proposal considers the Judicial Branch as the authority responsible for granting amnesty.
This would be the third Amnesty Law to be enacted. The first was in 1978 in favor of people who were imprisoned for sedition during the "Dirty War" of the 1970s and the second in 1994 to free members of the Zapatista Army of National Liberation who were arrested in Chiapas in January of that year. However, without the need for a special law, amnesty is already provided for in article 73 of the Constitution. Congress has the power to grant amnesties "for crimes known to the courts of the Federation. Therefore, it is not an innovative resource within the Mexican legal order.
Although the president has insisted that his initiative seeks to benefit the "humble people," the reality is that the terms used in the initiative to describe potential beneficiaries are imprecise and could lead to arbitrary application of the law. In addition, the bill only contemplates crimes under federal law, when there are few cases of abortion, simple theft or drug trafficking.
However, the bill mandates the Secretary of the Interior to initiate an appeal to state governments and congresses to adopt an amnesty law similar to the federal amnesty law that covers crimes committed within their territories. According to Cristina Reyes Ortiz, senior attorney for Mexico's Drug Policy Against Crime program, the main beneficiary of the presidential initiative is the FGR, "because it eliminates the workload of these cases, but, above all, the backlog".
On the other hand, it is contradictory to promote an amnesty to release from prison those who have committed minor crimes, while the catalogue of crimes that merit pretrial detention has increased. This would result in more people stepping foot in prison before their guilt is proven or the necessary investigations are carried out. The government itself is thwarting its goal of preventing people in poverty from being deprived of their liberty.
In his crusade for the pacification of the country and the reconstruction of the social fabric, President López Obrador bets on amnesty. But he has lost sight of the fact that this mechanism does not work on its own. His initiative forgets the role of the courts, lacks clarity as to the characteristics of possible beneficiaries and the types of crimes they committed, and does not ask what will happen once they are released. If it were to be carried out as planned, the opportunity to guarantee access to justice for all Mexicans would be missed.
Source: Letras Libres