Mexico’s drug wars rage out of control, Guardian (UK), 23 March 2010

Despite crackdown by Felipe Calderón, more than 2,000 people killed this year as drug cartels vie for turf

Saturday: A shoot-out between rival cartels in the north-western state of Sinaloa leaves nine dead, including six peasant farmers caught in the crossfire.

Sunday: Gunmen burst into a wedding in a small rural town in the southern state of Guerrero, killing five.

Monday: Hitmen target two people driving in Ciudad Juárez. The scene recalls the murder of three people linked to the US consulate 10 days earlier.

Tuesday: Newspapers publish a photograph of an alleged drug dealer being arrested by marines next to pictures of a body dressed in the same clothes which was found dumped on Monday.

Just a small selection of incidents from the last five days of Mexico’s raging drug wars that have left few parts of the country untouched over the last three years . A snap visit today by the US secretary of state, Hillary Clinton, is a sign of how concerned the US is getting about the spiralling violence just over its southern border.

With more than 2,000 people killed since the new year, 2010 is shaping up to overtake the record 6,500 drug-related murders last year, which topped the toll of more than 5,000 in 2008. The killings have happened despite an offensive against the cartels involving tens of thousands of soldiers and federal police launched in December 2006 by the president, Felipe Calderón. .

“We will not take even one step back in the face of those who want to see Mexico on its knees and without a future,” Calderón said on Sunday. But such expressions of determination do little to counter the impression that the authorities are unable to deal with the killings, which are marked by ever more inventive cruelty and savage perversion.

International coverage focuses on the relentless violence in Ciudad Juárez, which has turned the city across the border from El Paso, Texas, into the deadliest in the world, with 191 murders per 100,000 citizens.

But this is a complex and multi-faceted series of regional conflicts involving at least six organised crime groups which use corruption as well as firepower to control territories.

“The federal government is too weak to control the state governments so it is crazy to think they can control organised crime in those states,” says Samuel González, a former drug czar turned critic of Calderón’s military-led strategy.

González says it is illusory to hope that the war will burn itself out through the emergence of a single, clearly dominant cartel. “Every organised crime group has some degree of protection from local authorities which makes it impossible that one can gain [national] hegemony.”

Much of the violence has been between the Sinaloa cartel, led by the country’s most famous trafficker, Joaquín “El Chapo” Guzmán, and rivals vying for control of cocaine trafficking corridors across Mexico. The killing is also associated with growing cartel interest in other crime, from the growing domestic drugs market to kidnapping, arms dealing and people smuggling.

Some of the most vicious recent violence has been in the north-eastern state of Tamaulipas. The Gulf cartel and its military wing, the Zetas, had assumed terrifying and absolute control over the busiest commercial stretch of frontier in the world. A pax mafiosa – the mafia’s peace – briefly reigned between the two gangs, with commercial and civic life subjugated by an omnipotent extortion racket.

But over the past month, an internecine battle has exploded in the Gulf cartel. According to reports reaching the Guardian from Reynosa, the epicentre of the fighting, 200 people were killed over three weeks in late February and early March.

In Reynosa, at least eight journalists have been kidnapped in recent weeks. Two were visiting reporters from Mexico City who were later released and are too frightened to talk about their ordeal. One other was found tortured to death and five are still missing.

Information from a journalist who must remain nameless for her own safety described armoured cars cruising through Reynosa marked CDG – Cartel del Golfo – or else with the letters XX to denominate the Zetas.

After one reported gun battle in Reynosa, the Gulf cartel hung a message from a bridge. It read: “Reynosa is a safe city. Nothing is happening or will happen. Keep living your lives as normal. We are part of Tamaulipas and we will not mess with civilians. CDG.”

The government has sent in crack units of the marines but with little obvious success. A crime reporter from Ciudad Victoria, also in Tamaulipas, told the Guardian that he was on his way to cover a shoot-out last Thursday when traffickers called his mobile phone and warned him not to publish anything. “They know everything about you. I don’t know how they do, but they do,” he said. “If you publish anything about them they don’t like, or somebody in the government who is protecting them, then you are going to regret it, big time.”

The following day there were five gun battles across the city, and on Saturday there were a further three. Of these, only one was referred to by the state government website that promises reliable information about the violence. Local news outlets decided against publishing government promises to improve security after warnings from the traffickers. Publishers self-censor complaints of abuses by the army for fear of angering the third force also battling for control of Tamaulipas.

Meanwhile, the axis of the conflict in Juárez is the attempt by El Chapo to muscle in on the turf traditionally controlled by the Juárez cartel.

In the urban nightmare of Juárez, amid closed factories and abandoned homes, the pyramids of narco-cartel power have collapsed into a state of criminal anarchy. Here gangs fight a ruthless war for the local plaza, or dealing turf. Municipal and state police forces are infested by corruption, forming mini-cartels of their own. The role of the army in Juárez has also been called to account by a Chihuahua state human rights official, Gustavo de la Rosa, who accuses the military of playing a part in “social cleansing”, as most of the dead are addicts and former users.

“The difference between Juárez and Tamaulipas is that in Juárez the state still has a degree of formal presence, however incompetent,” says Edgardo Buscaglia, who specialises in comparing worldwide trends in organised crime. “In Tamaulipas the state is absent. It is like Afghanistan.”

R v Momcilovic: Australian drug law ‘inconsistent’ with the presumption of innocence

Victoria’s highest court has invoked the state’s Charter of Human Rights to send a law back to Parliament on the grounds that it breaches the rights of citizens.  It is the first time the court has used this power and it is doing so in a drug possession case which the Supreme Court says tramples on the right to the presumption of innocence. Under Section 5 of Victoria’s Drugs Act someone is deemed to be in possession of drugs if they own a property where the drugs are found, unless they can prove otherwise. (ABC News)

A summary of the case (full decision available here) has been compiled by the Human Rights Law Resource Centre.

In a landmark decision, R v Momcilovic [2010] VSCA 50 (17 March 2010), the Victorian Court of Appeal has unanimously held that:

• s 32(1) of the Charter is not a ‘special’ rule of statutory interpretation, but rather a statutory directive that requires all persons engaged in the task of statutory interpretation to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’;
• the issue of ‘justification’ pursuant to s 7(2) arises only if it is not ‘possible’ to interpret legislation compatibly with human rights;
• any infringement of human rights should be ‘demonstrably justified’ by clear, cogent and persuasive evidence;
• where an infringement can not be demonstrably justified, the Court should grant a Declaration of Inconsistent Interpretation, such declarations being ‘central’ to and ‘exemplifying the dialogue model of human rights legislation’.

In the present case, the Court of Appeal found that a reverse onus provision infringed the right to the presumption of innocence in a purposive manner that could not be cured by s 32 or justified by s 7.  Accordingly, the Court indicated its intention to issue a Declaration of Inconsistent Interpretation, which would effectively remit the provision to parliament for reconsideration but give parliament ‘the final say’.

Facts

The applicant, Vera Momcilovic, was convicted of one count of drug trafficking in the County Court.  The drugs were found in the applicant’s apartment.  Pursuant to s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’), the applicant was deemed to be in possession of the drugs unless she ‘satisfie[d] the court to the contrary’.  Thus, s 5 of the DPCS Act imposes on a defendant the legal burden of disproving possession and, when read in conjunction with s 73 of the Act, means that ‘upon proof by the prosecution that a drug of dependence was found “upon any land or premises occupied by” that person, then unless he/she satisfies the Court to the contrary, he/she is deemed to be in possession of that drug.’

The applicant appealed against conviction and sentence.  The appeal against conviction proceeded on the ground, among others, that s 32 of the Charter requires that s 5 of the DPCS Act be interpreted as placing only an evidentiary burden on an accused.

The Human Rights Law Resource Centre was given leave to appear as amicus curiae and make written and oral submissions on the application of the Charter.  The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission also intervened in the proceeding, pursuant to ss 34 and 40 of the Charter, respectively.

Decision

The Court refused the appeal against conviction, holding that it was not ‘possible’ to interpret s 5 consistently with the right to the presumption of innocence.  Accordingly, the Court notified the Attorney-General and the Commission of its intention to issue a Declaration of Inconsistent Interpretation.

Statutory Interpretation under the Charter

Section 32(1) of the Charter requires that ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.

The Court held that this provision does not ‘create a “special” rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question’.

Instead, the Court characterised s 32(1) as a ‘statutory directive’ that requires all persons engaged in the task of statutory interpretation to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’.  The Court concluded that:

“We reject the possibility that Parliament is to be taken to have intended that s 32(1) was only to operate where necessary to avoid what would otherwise be an unjustified infringement of a right.  The Human Rights Law Resource Centre’s submission to this effect was correct.”

In reaching this conclusion, the Court endorsed the decision of Elias CJ in Hansen [2007] 3 NZLR 1.

Accordingly, the Court held that, when it is contended that a statutory provision infringes a Charterright, the correct methodology is as follows:

• Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).
• Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.
• Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

If the limitation is not demonstrably justified pursuant to s 7(2), a Court may issue a Declaration of Inconsistent Interpretation.

The Court distinguished this approach from that of the House of Lords in Ghaidan, stating that, ‘s 32(1) was not intended to create a “special”’ rule of statutory interpretation’ and concluding that:

“our view that s 32(1) does not permit a departure from the intention of the enacting Parliament is reinforced by the fact that s 32(1) requires provisions to be ‘interpreted’ compatibly with human rights.  “Interpretation” is what courts have traditionally done.”

In the present case, the Court held that the reverse onus established by s 5 of the DPCS Act was ‘not so much an infringement of the presumption of innocence as a wholesale subversion of it’, contrary to s 25 of the Charter.  The Court iterated, however, that ‘the choice between a legal burden and an evidentiary burden is a legislative choice’ and that it is not ‘possible’ for a Court to substitute an evidentiary onus for the legal onus: ‘If that substitution is to be made, it is a matter for Parliament’.

Reasonable Limitations under the Charter

The Court next considered whether the limitation on the presumption of innocence imposed by s 5 of the DPCS Act was ‘demonstrably justified’ in accordance with s 7(2) of the Charter.

On this issue, the Court endorsed the approach of Dickson CJ in Oakes [1986] 1 SCR 103, regarding the need for clear, cogent and persuasive evidence in order to demonstrably justify a human rights infringement.  After highlighting that there was no evidence before the Court to ‘establish that effective prosecution…depends on the reverse onus’, the Court stated:

“this was a case where evidence was required.  The mere assertion that the reverse onus was essential to the effective prosecution of trafficking offences could never have been sufficient by itself to establish that fact.  There may be circumstances where the justification for interfering with a human right – and for doing so by the particular means chosen – is self-evident, but they are likely to be exceptional.  The government party seeking to make good a justification case under s 7(2) will ordinarily be expected to demonstrate, by evidence, how the public interest is served by the rights-infringing provision.  The nature and extent of the infringement of rights sought to be justified will usually determine how much evidence needs to be led, and of what kind(s).”

In the absence of evidence, the Court concluded that there was no demonstrable justification (or even a reasonable justification) for reversing the onus.

Declarations of Inconsistent Interpretation under the Charter

Having reached the conclusions above, the Court notified the parties of its intention to make a Declaration of Inconsistent Interpretation under s 36(2) of the Charter.

Significantly, the Court noted that, contrary to the approach under the Human Rights Act 1998 (UK), such Declarations should not be seen as a ‘last resort’ but rather, as reflected in parliamentary debates about the Charter, as ‘epitomising the intended relationship between the courts and the legislature’ in the dialogue model.  On this point, they concluded that

“the making of a declaration of inconsistent interpretation accords more closely with this conception of dialogue, and in particular with the avowed purpose of ‘giving Parliament the final say’, than would an expanded view of ‘interpretation’ which allowed courts to depart from the plain meaning of a statutory provision and the intent of Parliament thereby conveyed.  Under the Charter, the concept of the ‘final say’ is given direct expression in the obligation of the responsible Minister to table in Parliament a written response to a declaration of inconsistency.”

If a Declaration is made, s 37 of the Charter requires that the Attorney-General table this Declaration, together with his written response, in Parliament within six months.

Drug control, crime prevention and criminal justice: A Human Rights perspective

New paper by the United Nations Office on Drugs and Crime and released this week at the 53rd session of the UN Commission on Narcotic Drugs. This is UNODC’s most comprehensive and detailed treatment of human rights issues and obligations in the context of drug control.

UNODC Human Rights Conference Paper