JURIST Guest Columnists Viviana Giacaman and Elsa Peraldí of Freedom House argue that the proposed constitutional amendment to federalize crimes against journalists in Mexico is an important and timely step, but more must still be done…

Last month, the Mexican Senate approved a constitutional reform that makes crimes against journalists and media outlets a federal offense. While this is a positive step, there are reasons to be skeptical. On the one hand, the constitutional reform has to follow a long legal pathway to be ratified, including approvals by 17 of Mexico’s 32 state legislatures. This means that a great deal of political will is necessary at the state level, where public officials are more likely to be involved in the attempts to silence the press and where the influence of organized crime and corruption is higher. On the other hand, Mexico’s justice system is weak and the country’s impunity record is dismal, particularly in cases involving journalists. Almost 100 percent of them remain unresolved.

Nonetheless, the constitutional reform is timely. According to the International Press Institute, 102 journalists were killed in 2011, 10 of them in Mexico, making Mexico the deadliest country in the world to be a journalist. Journalists also face regular intimidation, extortion and physical attacks, particularly those who report on organized crime or corruption. Self-censorship has become the norm among media outlets; in the most violent states, such as Tamaulipas, the press simply stopped covering news related to drug trafficking or violence.

The legal path ahead of the constitutional reform is complex. Once the reform is ratified, secondary legislation will have to be drafted and approved and it might be necessary to adapt the criminal code. The federal Attorney General’s office is also required to draft a regulatory norm to establish the circumstances and mechanisms under which the cases could be brought to the federal level. Issues such as how to determine if the killing or attack was linked to their journalistic work, what crimes are to be investigated at the federal level and which ones at the state level and what procedure will be put into place to bring the cases to federal courts will need to be resolved. All of these questions, if not carefully addressed, may place further obstacles in the investigation and prosecution of these crimes.

The intense advocacy of Mexican civil society organizations and the international attention and pressure for the federalization of crimes have significantly contributed to the approval of the reform last month. Domestic and international pressures were also triggers for two previous measures to address freedom of expression.

In 2006, the government created the Special Prosecutor’s Office for Crimes against Freedom of Expression (FEADLE), with a mission to investigate and prosecute crimes related to the press. Its impact has been limited, as it has only prosecuted 27 cases and attained only one conviction. The constitutional reform approved in March will increase the competence of this office by allowing it to take over local cases. Many Mexican and international NGOs have called to further strengthen FEADLE by granting more autonomy and a more robust budget. This year, however, FEADLE’s budget was reduced by 72 percent.

Second, in 2010, responding to the demands [PDF] by civil society organizations and international bodies like the Inter-American Commission on Human Rights, Mexico created a mechanism for protecting journalists. The mechanism is a prevention system by which at-risk journalists can request protection measures to safeguard their physical integrity before they become victims of violence. This mechanism was inspired by a successful program to protect human rights defenders in Colombia, which has been in use for over a decade.

This mechanism is addressing the obligation governments have to protect their own citizens under international law. However, as with FEADLE, this initiative has fallen short of its expectations. The mechanism was not created by law, but by an administrative agreement among ministries, and therefore its recommendations are not binding. This means that public offices may not comply with a decision to protect an at-risk journalist. The mechanism lacks clear guidelines for assessing risk and protocols for determining the appropriate protection measures. Furthermore, unlike the Colombian program [PDF], the Mexican mechanism does not include civil society or victims’ groups in the decision-making process.

The debate around the constitutional reform presents a great opportunity for the government to both increase effectiveness of FEADLE and to improve the protection mechanism, creating a holistic federal strategy to protect journalists and end impunity. The question is whether these initiatives are part of the electoral strategy of the administration to favor his party in this year’s presidential race. It is difficult to tell, but as we approach the elections, the government increases its human rights rhetoric. Regardless of who occupies the presidential palace for the next six years, the big challenge for Mexicans is to ensure that these three initiatives are more than electoral rhetoric and become effective long-lasting policies of Mexico.

The constitutional reform is an important step, but only one among many other initiatives that need to be strengthened or created to ensure protections for journalists and free speech. For that to occur, Mexico needs a government that is truly committed to defend human rights, a leadership with clear vision that can move forward despite the vast challenges and an active and collaborative civil society to implement change.

Viviana Giacaman is the director for Latin America programs at Freedom House. A native of Chile, she has over 10 years of experience in the fields of democratic governance, civil society and human rights in Latin America. At Freedom House, she designs and manages programs aimed at strengthening civil society, advancing democracy and human rights and the rule of law in Latin America.

Elsa Peraldí is a Program Associate for Freedom House. She works on issues relating to human rights and democracy in Latin America. She recently earned her Master of Laws from Cambridge University. During her studies, she focused on human rights law and civil liberties. Prior to her master studies, she lived in Mexico where she worked for different Mexican governmental agencies including the Congress of Coahuila.

Suggested citation: Viviana Giacaman & Elsa Peraldí, Mexican Reforms an Important Step to Protect Journalists, JURIST – Hotline, Apr. 13, 2012, http://jurist.org/hotline/2012/04/giacaman-peraldi-journalists.php.