Transforming the Parramatta Female Factory institutional precinct into a site of conscience

With the inclusion of the Parramatta Female Factory institutional precinct on the national heritage list, the federal government has recognised for the first time that institutionalisation is and has been a central part of Australia’s welfare system over two centuries.

The listing is testament to this precinct’s unique capacity to tell the stories of institutionalised women and generations of Australians who experienced out-of-home care, known as forgotten Australians, child migrants and Stolen Generations. It is now up to national, state and local interests to embrace this change.

The Parramatta Female Factory was identified as a site of abuse by the Royal Commission into Institutional Responses to Child Sexual Abuse, which has now made its final recommendations.

It is timely to ask how past sites of institutional abuse can be transformed from places of incomprehensible violence and suffering into places that can be harnessed to achieve the commission’s goals of redress, justice and the prevention of future institutional abuse.

The long wait for justice

The Parramatta Female Factory institutional precinct has been in continuous use since an assignment depot for female convicts was established there in 1821. In 1847, the original site was repurposed as Parramatta Lunatic Asylum, and again, in 1983, as the present-day Cumberland Hospital.

The adjacent Roman Catholic orphanage site, founded in 1844, became Parramatta Girls Industrial School in 1887, and operated as Norma Parker Women’s Detention Centre until 2010. An estimated 30,000 women and children passed through the portals of the child welfare and Female Factory institutional complex alone.

This is Australia’s longest-operating site of institutional incarceration and violence against females. It is also a place of punitive incarceration of children, women and Indigenous Australians and those labelled as mentally ill. Why did it take so long for this site to be added to the national heritage register?

Parragirls Bonney Djuric and Gypsie Hayes in 2014. Michael K. Chin, courtesy PFFP Memory Project, Author provided (No reuse)

If not for former residents of Parramatta Girls Home this listing would have never happened. Parragirls founder Bonney Djuric lodged the original national heritage application in 2011, which was the basis for its final listing in 2017.

Parragirls have continuously fought, for more than a decade, to preserve this place so that the injustices they suffered will never be repeated again.

But, until today, the neglect of the girls’ home and the entire precinct has replicated the abandonment the women have experienced in seeking justice for themselves and the thousands who passed before them.

Girls interned at Parramatta Girls Home experienced systematic and endemic levels of violence and neglect – the effects of which are endured by survivors to this day. These violations have been recorded by the royal commission.

Findings from the commission’s investigation into the girls’ home catalogue a regime of discipline and punishment and emotional trauma, including physical and medical control, and physical and sexual abuse. Compensation and civil claim processes related to the home also came in for criticism in its report.

The problem confronting both the commission and Australians more generally is how to contend with personal and collective trauma on this scale. With the site now earmarked for redevelopment under the Parramatta North urban transformation plan, the New South Wales government faces this same challenge.

Creating a site of conscience

Apologies, stone memorials and trauma tourism no longer suffice for those living with the consequences of serious abuse. We urgently need a new imaginary for our past, where we make use of Australian heritage to do justice.

Former residents of Parramatta Girls Home have shown us how this is done by implementing a singular vision to transform this forgotten place. It’s called a site of conscience.

In principle, the site of conscience global movement proposes the reclamation of places of human suffering to make common ground for dignity, respect and civil participation, instead of abuse and neglect.

Engaging with a site’s history in this way, government, civil society and the public can better understand contemporary social justice issues and build a future society that does not repeat the wrongs of the past.

In practice, on the grounds of Parramatta Girls Home, a site of conscience has been brought into being through the community activities of Parragirls and PFFP memory project. Launched in 2012, the memory project has enabled Parragirls to supplant isolation, shame and silence with shared memory, creativity and social gathering.

Activities include inaugurating an annual children’s day and memory garden, collaborative exhibitions and performances, and Stolen Generations’ songwriting and live music events. The memory project has also enabled Parragirls to contribute to the design of the Parramatta Girls Home memorial and to impact academic research on ethics and policy on child welfare records.

Agency is crucial to the activation of this institutional precinct as a site of conscience. This means, first and foremost, those who experienced injustice – its former occupants – are empowered to determine how we remember the past and how to use it build a better present and future.

Long Time Coming Home, National Sorry Day event, 2017. Catherine McElhone, courtesy PFFP Memory Project, Author provided (No reuse)

Transformative justice

Imagine a living public memorial that includes all Australians in the commitment to ensure our children are protected both now and in the future.

From this precinct, we can learn how past legacies and social issues impact contemporary practices of institutionalisation and systemic violence against women and children.

It is here, in this very place of inordinate pain and loss, that we can best put justice to work and make use of past wrongs for future good. And this enables us, as a nation, to put into action the royal commission’s goals of redress, justice and the prevention of future institutional abuse.

This vision calls for our collective embrace of transformative justice. It also demands our civic engagement to hold the government to account in the development and future use of Australia’s principal site of institutional welfare heritage.

Linda Steele (Member of LIRC, UTS), Lily Hibberd (UNSW), Bonney Djuric (UNSW)

This article first appeared in The Conversation on February 5 2018.


Seminar: Subversive Legacies: Law, Literature and Repetition

Presented by Professor Marianne Constable

Date: Thursday 7th December 2017

Time: 4:30 – 6:30pm

Venue: Building 67, Room 202, University of Wollongong

Drawing on law and on literature, I will discuss how repetition, as textual figure of speech and as practice, enables both possibilities of change and of resistance to change. Reiterating the past transforms the present and subverts it, through mechanisms that may be conducive, on the one hand, to learning new habits (routines, skill, expertise) and, on the other, to the entrenchment of old harms and embedding of trauma. Examples will include: issues of appropriation surrounding a short story by Borges; the way different stories of domestic violence emerge from recognition of “patterns” of abuse; and the strange case of semantic saturation. In the seminar at Wollongong, I will focus most on the “gender” and domestic violence example, which comes from research I am doing on the history of the “new unwritten law” in the US at the turn-of-the-century (19th to 20th).

Marianne Constable is Professor of Rhetoric at the University of California, Berkeley and author of The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge (winner of the Law & Society Association J. Willard Hurst Prize in Legal History); Just Silences: The Limits and Possibilities of Modern Law (Princeton University Press); and Our Word is Our Bond: How Legal Speech Acts (Stanford University Press). She is currently working on two book-length projects: one on women who killed their husbands and got away with it under what was dubbed “the new unwritten law”; the other on learning and language in the written philosophical dialogue.

Please visit the LIRC website to register your attendanceFor more information and to RSVP.


LIRC’s second annual PhD Works-In-Progress Session explores the rich diversity of student research

Following the success of 2016’s ‘Writing Out Loud’ PhD session , the Legal Intersections Research Centre at the UOW Law School recently held its second 2017 iteration, providing the opportunity for five of its PhD students to showcase their research. As long as the presentation related to an aspect of their research, the students were free to present whatever they were currently focussed on, which resulted in a fantastically diverse session!

Taking place on the 13th of September, 2017, the session was structured loosely in order of earlier-stage to later-stage students, with Xu Qinqing, Stephanie Apsari Putri, Dylan Amy Davis, Sarah Wright and Ryan Kernaghan presenting. Fellow LIRC PhD student, Fabienne Else, acted as convener. Some of the earlier-stage students used this opportunity to present the entirety of their current research, in a proposal format, while others presented in a more traditional publication-style format.

(From left to right: Xu Qinqing, Stephanie Apsari Putri, Ryan Kernaghan, Sarah Wright, Fabienne Else and Dylan Amy Davis)

Starting the afternoon off, was Xu Qinqing, a first-year PhD student whose research focuses primarily on collective management of music copyright. Her presentation Collective Management of Music Copyright — A Comparative Analysis of Collective Management Organisations in China, the US and Australia’ examined emerging issues in Chinese copyright management. Xu’s highly informative session outlined some very pertinent issues facing music copyright in the digital age, including the emergence of collective management organisations (CMOs) and issues concerning the rights of both members and non-members of these institutions. By comparing the current stance of CMOs across China, Australia and the US, Xu outlined her hopes of developing a greater understanding of CMO development in China.

Second to present was Stephanie Apsari Putri, another first year PhD student whose research focussed on a very different area – that of food adulteration. Her presentation ‘Regulation of Food Adulteration in Indonesia: A Quest for its Effectiveness’ was incredibly eye-opening to the audience, as many were unaware of the levels of deceptive food behaviours that occur in areas of Indonesia, including the popular tourist area of Bali. While the audiences eyes grew continuously wide at Stephanie’s visual illustrations of bleached rice and rotten foods, she deftly outlined multiple issues regarding Indonesia’s current approach to food safety regulation. While still in the early stages of her research, it was clear that Stephanie’s thesis will go on to raise many eyebrows in the future, both for its confronting insights and useful contribution to potential policy reform.

Following Stephanie’s presentation was a new addition to the Law School and LIRC – Dylan Amy Davis. Having recently transferred from the School of Arts, English and Media, Dylan continued the diverse nature of the session, outlining their research on Bisexual erasure in law and culture: queer temporality, compulsory monogamy and narrative’. Dylan impressed the audience with a close examination of the positioning of their research in a current literature gap surrounding the logics of ‘bisexual erasure in contemporary Western social, cultural and legal discourses’. Dylan outlined how queer temporality, compulsory monogamy and narrative provide new interpretative frameworks for theorising in the area of bi-erasure. Taking on a very large and challenging project, Dylan discussed their approach of interviewing a variety of bi-spectrum individuals to provide a more complete analysis of bi-erasure and in order to assist in the development of new ways thinking critically about how Australian law and culture think about, and present, bi-sexuality. The audience was greatly impressed by the scale of Dylan’s project, and several made comments on potential future research directions for this area.

As mentioned previously, the latter part of the session was devoted to the Law Schools later-stage PhD students, with Sarah Wright, a former solicitor for the NSW Office of Environment and Heritage, and current Lecturer in the Law School presenting her paper ‘Re-examining the Approach to Alternative Sentencing Orders in New South Wales Pollution Law’. An examination of the current remedies available to the Land and Environment Court of NSW, her paper critiqued the seemingly narrow approach to sentencing that is currently occurring in that Court. Sarah provided the audience with a very clear outline of the current remedies, before illustrating their use according to recent statistics. Her paper made the audience question why alternative sentencing orders (ASOs) such as environmental service and payment orders, publication and monetary benefit orders are not popularly utilised, despite their availability. Presenting a very strong case for the uptake of these ASOs in the future, Sarah demonstrated that the existence of legislation does not necessarily lead to uptake, and it continues to be the role of legal academics to investigate the operation of laws in practice.

To finish the day, experienced PhD student and sessional lecturer Ryan Kernaghan, gave a presentation outlining some of his reflections and insights regarding ‘going to full draft’ within a PhD. In his presentation, Ryan outlined some incredibly useful advice for the newer PhD students in relation to pushing through research and writing barriers, overcoming self-sabotage and practicing good self-care. The aim of this presentation was to give the students some time to reflect on their own PhD journey and it provided a fantastic closing discussion for the students on the difficulties so often inherent to the PhD experience. As a student on the cusp of submitting his own thesis, Ryan was well situated to promote such discussion, and provided many valuable insights that many of the other students found both useful and at times, quite humorous.

Ultimately, this Works-In-Progress session showcased the incredibly diverse nature of research that the School of Law, and LIRC in particular, are fostering. The passion of the students in their respective areas of research was clearly apparent within the presentations. Such events as this benefit both the audience and the presenters, for while the audience is given an insight into emerging areas of research, the presenters are granted with the opportunity to collect their thoughts and present them to a supportive, yet scholarly audience. While ideas or approaches may be challenged, ultimately the feedback provides a valuable opportunity for students to evolve their work and refine it for future dissemination.

As with last year, this event continued to support a sense of strong community among students in the UOW Law School, allowing them the opportunity to learn about others work, as well as presenting their own in a supportive, learning environment.

Launch of Pilot Project Report: ‘Advancement of Women in Law Firms: Best Practice’

A report, titled Advancement of Women in Law Firms: Best Practice, on the findings of a pilot research project undertaken by Professor Nan Seuffert, Director of the Legal Intersections Research Centre (LIRC), and Dr Trish Mundy, LIRC member and Senior Lecturer within the School of Law at the University of Wollongong (UOW), and conducted in partnership with the Women Lawyers’ Association of New South Wales (WLANSW), was launched recently in Sydney.

The pilot project investigates current best practices operating within national law firms in Australia that support women lawyers in their advancement to partnership and other leadership positions. Launched by the Honourable Acting Justice Jane Matthews AO, patron of WLANSW and Visiting Professorial Fellow in the LIRC, the project responds to the significant under-representation of women in senior positions within the legal profession, and their higher rates of attrition.

This study reveals that four of the top-achieving national law firms in Australia on gender equity criteria are engaging with many of the best practice initiatives for diversity and inclusion recommended by the current national and international research and scholarship. These best practice initiatives include: a commitment by leaders at the top of the firms; a focus on inclusive cultures; the introduction of retention strategies; professional development opportunities; mentoring; affinity groups; flexible work policies; engagement in evaluation and self-assessment processes; and, in some instances, providing specialised administrative support and the implementation of targets. What is apparent, however, is that the current best practices have yet to achieve significant advancement of women, or to break through the glass ceilings that continue to operate for women in large Australian law firms.

There are plans for the findings of this study to feed into a larger collaborative project, which will respond to calls for research done in partnership between academics, professional bodies and law firms. It will focus on producing new models for partnership that value all competencies necessary for law firm success in the 21st century, for reaching diversity goals, equity and justice, and for shifting firm culture consistent with these changes.

 A full copy of the report can be found here





EVENT: Advancement of Women in Law Firms: Current Best Practice and Future Directions

Presented by Professor Nan Seuffert and Dr Trish Mundy

 Date:         16 August 2017

Time:         1:30 – 2:30 pm

Location:   Building 67, Room 202 (Moot Court), University of Wollongong

This seminar discusses our forthcoming article in the International Journal of the Legal Profession and the findings of a collaborative pilot research project in partnership with the Women Lawyers’ Association of New South Wales (WLANSW). The article argues that a focus on synergies between the competencies and diversities movements, provide the greatest potential for reshaping law firm practice and partnership models to respond to issues of advancement, attrition and lack of re-engagement of women in large law firms. The pilot project investigates current best practices for diversity and inclusion in large Australian law firms, drawing on data produced by the WLANSW to identify the leading firms, and interviews conducted at those firms as part of the pilot project.

 For further information and to RSVP.


Law, Crisis and the Cultural Imaginary in Weimar Germany (1919-1933) – LIRC Seminar Presented by Dr Stephen Howe

12.30-1.30pm, 12 April 2017 Building 67, Room 202, University of Wollongong

The image of Weimar Germany as a ‘crisis culture’ has long-since taken root in the popular historical consciousness. Emerging from the crucible of war and revolution, and pockmarked by erratic patterns of cultural experimentation, economic turmoil and political flux, Germany’s first republic is frequently styled as a single prolonged moment of trauma and transformation that enveloped social life. The perception of crisis was widespread among contemporaries and found resonance not only in cultural media but also across the disciplines of economics, history, philosophy and medicine. In law, too, it was similarly pervasive – while socialists and liberals denounced the politically-driven practices of the courts, giving rise to what was publicly referred to as a ‘crisis of confidence in the judiciary’, legal theorists debated the ‘crisis of law’ that attended the radical transition to constitutional-social democracy.

Scholarship on such issues has to date tended to privilege disputes between legal luminaries and high- profile politicians, or to focus on discussions in the journalistic press. Yet the cultural texts of the era – literature, theatre, art, film – are also remarkable for the wealth and variety of their depictions of legal concerns. More than mere representations, these texts invite analysis as a form of popular jurisprudence that fosters new opportunities for productive negotiations of the contemporary crisis of law and justice outside the parameters of legal procedure, politics and academia. The aim here will be to survey the contours of this cultural discourse via analysis of a series of exemplary narratives that not only put the institutions of law and order in Germany on trial, but which also circulate back into the popular imagination as a point of reference for thinking about the stakes of law and crime.

Dr Steven Howe is a Senior Teaching & Research Fellow at the University of Lucerne in Switzerland. He is also a Visiting Research Fellow with the Humanities Research Centre at the Australian National University (ANU) in Canberra.

For more information and to register your attendance, please visit the LIRC website.

W(h)ither Feminist Legal Theory? A Retrospective – LIRC Seminar Presented by Susan Boyd

12.30-1.30pm, 15 March 2017, Building 67, Room 202, University of Wollongong

This paper reviews shifts and trends in feminist legal theory since the 1980s and is based on a work in progress. By 1990, the field of feminist legal theory was well established but it also was undergoing numerous challenges. An appreciation of the complexity of women’s inequality and the intersecting nature of oppressions, along with the influence of poststructuralism, prompted the trend away from universalizing theories focused on gender and law or “the state”. Less publication space is now devoted to works exploring more abstract questions about feminist legal theory per se than was true in the 1980s and the 1990s, as grand theories about the sources of, and remedies for, women’s oppression were challenged, fragmented, and sometimes dismantled. That said, the insights of feminist legal theory continue to be relevant, even if less space is devoted to overarching questions such as the roots of inequality. Moreover, feminist legal thought often takes the form of praxis or “applied” theory because it uses theory to critically assess practical areas of activity or law reform. Even as feminists have subjected new fields of law to critical analysis, many topics of long standing interest to feminism continue to sustain interest. This retrospective offers examples from the author’s own work as well as the journal Social & Legal Studies and focuses on themes such as Strategic Engagement, Intersectionality, Women or Gender, and Choice and Constraint. Recent calls for a return to a focus on socialist or materialist feminism and the nature of the state are assessed.

Susan B. Boyd is Professor Emerita at the Peter A. Allard School of Law at the University of British Columbia in Vancouver, Canada. She is also a Visiting Professorial Fellow with the Legal Intersections Research Centre at the University of Wollongong.

For more information and to register your attendance, please visit the LIRC website or see the Events page.


ABC Interview with Dr Luis Gomez Romero on US Immigration Policies regarding Mexico

American and Mexican researchers have proven that Mexican immigration to the United States (US) has been hitting a historical low since 2009. Since the last years of Barack Obama’s administration, more Mexicans have been leaving the US than coming into it. Donald Trump, the President of the US, has nonetheless implemented aggressive immigration policies that could cause great harm to both Mexico and the United States. Dr Luis Gómez Romero commented on these issues on Thursday on ABC’s ‘The World’:

If you are interested in learning more about the complexities around the migratory realities and policies at the Mexican-American border, you may find the following op-ed articles by Dr Gómez Romero quite instructive:

How the US is outsourcing border enforcement to Mexico

Just who are the millions of ‘bad hombres’ slated for US deportation?

The wall and the beast: Trump’s triumph from the Mexican side of the border


The Legal Intersections Research Centre (LIRC) at the University of Wollongong (UOW) invites applications from PhD students enrolled at other universities to visit LIRC for a minimum period of two weeks in 2017.

LIRC engages in interdisciplinary scholarship across law, society and culture with a focus on public interest law and social justice. LIRC academic members come from law as well as diverse disciplines including media and cultural studies, business and forensic mental health. LIRC members’ current research relates to six themes:

  • Contesting Vulnerability;
  • Crime and Society;
  • Legal Transpositions;
  • Law and Popular Cultures;
  • Social Justice and Global Forces;
  • Legal Ethics, Culture, Practice and Professionalism.

The Visiting PhD Scholar Program aims to support high quality interdisciplinary PhD research in LIRC’s areas of research, to provide opportunities to PhD scholars from other universities to be involved in LIRC’s research activity and to support PhD scholars to form ongoing networks with LIRC academic and higher degree research (HDR) members.

LIRC will award one visiting PhD scholarship in 2017 up to $1500 to cover the cost of travel to Wollongong and assist with living expenses in Wollongong during the program. Visiting PhD scholars will have office space with a computer, printing and copying facilities and borrowing privileges at the UOW library. Visits in 2017 will be scheduled during August to October to maximise the opportunity for interaction with LIRC members and HDRs. Visiting PhD scholars are expected to be present on campus during the period of their visit in order to conduct their PhD research, participate in LIRC’s research activity, present their research at a lunchtime LIRC research seminar and be available for discussion of their research with LIRC academic and HDR members and UOW law honours students.

Application format

  • a curriculum vitae of no more than three pages, including name, previous degree/s, home institution and faculty, enrolment profile (fulltime, part-time, planned completion) supervisors, and, as applicable scholarship/s, publications and/or conference presentations, and work background;
  • a one page summary including the title, aims, overview, structure, chapter title, and of current status of the PhD research project;
  • a one page explanation of the alignment between the applicant’s PhD project and LIRC research, with reference to current research projects of one or more members of LIRC members, and how the applicant and their PhD will benefit from the visit to LIRC;
  • The proposed dates for the visit (between August and October 2017);
  • A reference, preferably from the applicant’s Principal PhD Supervisor

Applications close: Friday 24 February, 2017

Enquiries: Dr Felicity Bell,


A decade of murder and grief: Mexico’s drug war turns ten

A few weeks before the Mexico’s 2006 election, La Familia Michoacana — among the most vicious of Mexico’s major drug cartels – tossed five severed heads onto the dance floor of the Sol y Sombra night club in Uruapan, Michoacán, along with a message outlining its strategy for targeted killings, which it called “divine justice”.

As this gruesome incident rekindled the debate on national security, candidate Felipe Calderón, who went on to win the election, made a campaign promise: to fix the country’s drug problem. Calderón would be only the second Mexican leader who did not hail from the Partido Revolucionario Institucional (PRI), which had ruled for most of the 20th century. His campaign presented him as the only honest alternative to the PRI’s corrupt legacy. “My hands are clean”, claimed his ads.

On December 11, 2006, days after taking office, Calderón launched the “Operativo Conjunto Michoacán” – Operation Michoacán – sending some 6,500 soldiers, marines and federal police to the state. Its aim, according to minister of the interior Francisco Ramírez Acuña, was to “take back” a country that had been “seized” by organised crime. He also asked Mexicans for patience, cautioning that the fight would take time.

All this was exactly ten years ago. Today, Mexico’s drug war rages on, virtually unchanged. It is time to ask: what has the decade-long cartel strategy achieved?

Another failed American war

As one must when assessing war, let’s start with the casualties. 150,000 people have died in Mexico’s drug war since 2006, and another 30,000 are missing. Many victims of this decade of murder and grief have been unheralded, but some have made the headlines: 22 civilians summarily executed by the army in Tlatlaya, 43 students who disappeared without a trace in Ayotzinapa in 2014.

A woman reacts to a massacre perpetrated by the Gulf Cartel. Daniel Becerril/Retuers

The death toll far exceeds the 103,000 civilians killed in the conflicts in Afghanistan and Iraq between 2007 and 2014. By 2012, Mexico’s homicide rate was among the world’s highest, at 21 per 100,000.

Researchers at the Centro de Investigación y Docencia Económica have found that in Mexico the deadliness ratio – that is, the proportion of civilians injured compared those killed – is alarmingly high. In 2014, the army killed 168 civilians and injured 23 (deadliness ratio: 7.3), while the Marines injured 1 and killed 74 (deadliness ratio: 74). It’s little surprise the Marines are the favoured military force in fighting the drug war.

Despite this violent law enforcement, drugs have continued the steady flow north to the United States, the world’s largest consumer of cocaine; 84% of that cocaine enters via the Mexican border. Between 2005 and 2011, the height of Calderón’s war, the US Border Patrol seized 13.2 million pounds of marijuana. In 2015, Border Patrol seized more than 2 million pounds of all sorts of drugs.

Mexico’s drug war actually predates Calderón. The term “War on Drugs” came into common usage after American president Richard Nixon established the Drug Enforcement Administration in 1973 to conduct “an all-out global war on the drug menace.”

Since then, both the US and Mexico have fought that war, at great cost. Mexico has spent at least $54 billion on security and defence, with US donations of at least $1.5 billion. That amount includes the Mérida Initiative, a security-based aid agreement that included special aircraft and training for pilots to confront cartels from the air.

The American government has consistently encouraged Latin American governments to use weapons of war to fight drugs (a role the US military cannot legally play at home).

Enrique Peña Nieto has continued his precedessor’s cartel policy – he just talks about it less. Reuters

In Mexico, the armed forces have been turned against the Mexican people, and have gradually established a record of violating human rights. Under Calderón, Mexico’s National Human Rights Commission saw a significant increase in citizen complaints of abuse. In the first two years of Calderón’s successor Enrique Peña Nieto’s administration, the army accumulated 2,212 complaints – 541 more than those lodged against the military in Calderón’s first two years.

The war is thus a Mexican-American problem. But the US has managed to stay righteous while quenching its thirst for cocaine and other drugs. And American weapons and drug money laundered by big-name banks continue flowing south into Mexico.

Doing it for the kids

US culpability doesn’t make the Mexican government innocent. Indeed, political analysts Rubén Aguilar and Jorge Castañeda have traced the roots of the drug war back to Calderón’s faulty legitimacy in office.

Calderón assumed the presidency amid a turbulent struggle with the supporters of Andrés Manuel López Obrador, his left-wing opponent in the 2006 elections. López Obrador claimed fraud and challenged the election results in court. Though Calderón was unanimously declared the winner, López Obrador refused to recognise the decision, calling Calderón an “illegitimate president”.

Aguilar and Castañeda argue that, in 2006, the Mexican government needed an enemy: the drug cartels handily played this role.

Publicly, Calderón’s main justification for waging war on drug traffickers was a supposed increase in consumption among Mexico’s youth. He coined a simple slogan – “Para que la droga no lleguen a tus hijos” (“Keep the drugs out of your children’s reach”) – and recruited masked Lucha Libre wrestlers to reiterate his alleged concern for Mexican kids.

Calderón’s claims were groundless. According to data provided by both the Mexican National Council on Addictions and the United Nations, drug use in Mexico is very low (for international comparison, see this interactive map of consumption). Today, as in 2006, Mexico remains a transit country.

Calderón’s true motives for launching the war were probably a combination of the need to legitimise his government domestically and strengthen his strategic relationship with George W Bush. However, in a forewarning of today’s post-truth era, the fact that Mexican children didn’t actually do drugs didn’t stop him from justifying a war in their name.

The deadly time machine

Calderón wasn’t a cartoon tyrant. He is a savvy lawyer, and a careful observer of society and politics.

The president knew he couldn’t rely on the police, whom 90% of Mexicans feel are corrupt, to undertake his crusade. They’re also outrageously inefficient: an estimated 99% of crimes go unsolved. Now that’s impunity.

Mexicans believe in three institutions: family, the Catholic Church and the army. Calderón thus adopted the US’s favoured policy of sending the army into the streets to fight drugs.

His shrewd decision may have initially pleased the Mexican people and their American neighbours, but it didn’t have the support of the constitution. According to article 129, no peacetime military authority may perform functions not directly connected with military affairs. In other words, the military cannot do the job of the police.

However, in 1999, PRI President Ernesto Zedillo proposed a law to create a Federal Preventative Police, hiring 5,000 new military personnel for allegedly temporary positions until Mexico could select and train enough new civilian agents.

Zedillo’s policy was legally challenged, but in 2000 the Court decided that, under the Mexican constitution, the armed forces can legitimately perform law enforcement functions. And thus: the legal basis for Calderon’s cartel war.

As Professor Desmond Manderson has noted, the law is a time machine: the real problem with bad law isn’t its immediate implementation but how it can be used in the future.

Since 2014 president Peña Nieto has persisted with Calderón’s approach, with the clever twist of not publicising it so much. Journalist José Luis Pardo has observed that the current president is like a teenager who, in trying to rebel, repeats what he’s seen his father do.

Arresting cartel leader after cartel leader has yet to make a dent in the drug smuggling business. Daniel Becerril/Reuters

Today, organised crime accounts for nearly 60% of the more than 15,000 homicides recorded in Mexico. August and September 2016 were the deadliest period in almost 20 years.

What is to be done?

The supply-side response to a problem driven by demand has not made a dent on drug trafficking.

Nonetheless, two security bills pending in the Mexican parliament seek to sustain it perpetually. Presented by senator Roberto Gil and congressman César Camacho, they propose to permanently enable the Mexican military’s law enforcement role.

Even General Salvador Cienfuegos Zepeda, Mexico’s minister of defence, seemingly thinks this is a bad idea. On December 8 he declared that fighting the war against drugs has “denaturalised” the Mexican military. “None of us studied to chase criminals”, he said.

‘Desaparecidos’, like the 43 students who went missing in Ayotzinapa in 2014, are collateral damage. Edgard Garrido/Reuters

Ten years after Calderón sent troops to Michoacán, Mexico has a choice: change or perish. We can start by accepting that we will never eliminate drug consumption. Using drugs is a personal decision and a health issue, not a criminal one.

Drawing from the recent recommendations of the Global Commission on Drug Policy, Mexico can outline a policy agenda that decriminalises personal use and possession of drugs while implementing alternatives to incarceration for low-level suppliers. (Full disclosure: I recommended decriminalisation as a member of the transition team of Calderon’s PAN precedessor, Vicente Fox. I’m haunted by the consequences of the government’s failure to do so). It should also consider moving toward regulating the drug market, as Uruguay has done with marijuana, from production to distribution.

Decriminalising both the supply and consumption of something as transnational as drugs can only succeed if it’s embraced on both sides of the border. Even under a Trump presidency, lobbying for decriminalisation in the US would be a wiser use of Mexico’s resources than bemoaning Americans’ taste for Latin American drugs.

Decriminalisation must necessarily be accompanied by demilitarisation. Two recommendations from UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein can guide this process: first, to strengthen the capacity of Mexico’s police to protect public safety while respecting human rights and second, to adopt a time frame for withdrawing the military from public security functions.

Follow the leader (again)

In 1996, President Bill Clinton’s drug tsar Barry McCaffrey said that a war waged against a shapeless, intangible enemy as drugs can never truly be won.

In recent years the US has been heeding its own advice and winding down the domestic war on drugs. President Obama has declared that addiction should be addressed as a health problem. In the November 2016 election, nine states considered liberalising cannabis laws. Four approved recreational marijuana, including  California, the world’s sixth-largest economy. Residents in a total of eight states, plus the District of Columbia, can now legally take marijuana.

While Mexico continues battling its drug smugglers, more US states are legalising and regulating marijuana. Steve Dipaola/Reuters

With Colombia having similarly scaled back its violent anti-narcotics strategy, Mexico is now almost alone, in the unpleasant company of authoritarian firebrands such as Philippines’ President Rodrigo Duterte, in waging war against an shapeless abstraction.

Here’s to ending this ten years of tragedy with a smarter new beginning. In an authentic republic, citizens – not soldiers – look after each other’s security and liberty.

Dr Luis Gomez Romero, Senior Lecturer

This article first appeared in The Conversation on 12 December 2016