Mexican judges have threatened to throw their own president in jail for implementing constitutional reforms that subject them to direct elections. The effort is destined to fail, but the confrontation could set the tone for lawfare campaigns across the region.
November 4, 2024
Source: Jacobin
Claudia Sheinbaum | Image credit: ASAMBLEA INFORMATIVA EN TORREÓN, COAHUILA
Since taking office on October 1 as Mexico’s first woman president, Claudia Sheinbaum has had — to put it mildly — an eventful month.
She has made three trips to Acapulco to coordinate recovery efforts in the aftermath of Hurricane John. She has overseen the passage of key constitutional amendments, including measures to restore the passenger train network (privatized and eliminated in the ’90s), return the energy sector to public control, and authorize the federal housing authority, INFONAVIT, to build much-needed social housing. She has launched new programs to lower the pension age for women, provide home-to-home health care for senior citizens, provide day care for the children of maquiladora and field workers, and ban the sale of junk food in schools. And she has faced her own gruesome welcome wagon of violence, including the beheading of the mayor of the city of Chilpancingo, Guerrero, a pair of car bombings in the state of Guanajuato, and the killing of six migrants in Chiapas after the military opened fire on the truck carrying them, an incident currently under investigation.
But among all of these, the affair really putting her young administration to the test was set off before she took office: the judicial reform amendment, ratified on September 15, which provides for the direct popular election of federal judges.
Judges Run Amok
The judicial reform will roll out in two stages: half of the federal judiciary, including the Supreme Court, will be chosen in a special election in June 2025, and the other half at the time of the midterm elections in 2027. Current justices will have the option of participating in the elections or retiring from their posts.
The Mexican public has repeatedly demonstrated its utter fatigue with justices living high on the hog while leaving everyone else to pick up the pieces of a dysfunctional, profoundly unjust, and highly partisan justice system. At the same time that they stuff the bureaucracy with family members (according to a report by the chief justice of the Supreme Court herself, Norma Piña, the nepotism rate in the judicial bureaucracy in 2022 was a staggering one in two), judges routinely protect high-profile elites while leaving some 87,000 prisoners languishing for years without trials or sentences.
It is to be recalled that Morena ran on the judicial reform during this year’s presidential campaign, asking the public for the qualified majority of two-thirds necessary to pass it and other reforms over the opposition’s objections. Voters obliged. And in a series of polls taken shortly before ratification, support for the direct election of judges ranged from 68 to 75 percent.
Not surprisingly, this enthusiasm is not shared by the judiciary itself. Its guerrilla war against the reform began during the legislative process, when judges attempted to halt congressional debate by means of injunction or, failing that, prevent it from being sent to state legislatures for their consideration. While the idea that the judiciary can intervene to stop a legislature from doing its job is risible on its face — equivalent to Congress dictating to the courts what cases they can and cannot hear — it is further compounded by the fact that Article 61 of Mexico’s law governing the use of said injunctions (the Ley de Amparo), passed by today’s aggrieved opposition when it was in power in 2013, makes abundantly clear that they cannot be used against constitutional amendments.
This did not stop the judiciary, however, from trying again. Once the amendment was officially a done deal, a judge and conservative activist from Veracruz with a series of disciplinary problems ordered it to be stripped from the books within twenty-four hours; if not, she would refer the case to prosecutors, who, she warned, could move to jail the president for up to nine years for contempt. Coolly, Sheinbaum pointed out in her morning press conference on October 24 that it was illegal for the judge to remove something that had already been added to the Official Federal Register and that, by so ordering, it was the judge who had effectively placed herself in contempt.
Then it was the Supreme Court’s turn to get in on the act. Throughout October, it decided to accept a series of petitions submitted by opposition legislators and political parties to stop the reform. That was error number one, as political parties in Mexico do not have the standing to seek injunctions on constitutional matters; as for the justices themselves, the conflict of interest of purporting to rule on a measure that directly affected them was blatantly obvious to all concerned. Undeterred by such niceties, the court’s conservative majority plowed ahead, and, on October 28, Justice Juan Luis Alcántara Carrancá — who hosted a now infamous dinner between Chief Justice Piña and opposition political leaders before the election — presented a draft of his ruling. In language eerily reminiscent of the Bush v. Gore decision of 2000, which infamously limited itself “to the present circumstances,” Alcantára’s text took great pains to present itself as “exceptional” (nine times) and “an exceptionality” (five times). While accepting the settled precedent that a constitutional amendment cannot be unconstitutional, it goes on to contend that the offending parts of the Constitution are not constitutional-level text at all but downgradable to simple “federal electoral law” and thus susceptible to being overturned. In a subsequent interview on Radio Fórmula, former Supreme Court justice José Ramón Cossío (whose Instituto Para el Fortalecimiento del Estado de Derecho NGO is backed by the US soft-interventionist arm USAID) breathlessly threatened that anyone who disobeyed the ruling, be it the president or every last legislator, could be declared “in rebellion,” thrown out of office, and put on trial.
Keeping Her Powder Dry
All of this sounds far more lurid than it actually is. Backed by an enormous popular mandate, Claudia Sheinbaum is not going anywhere, nor are MORENA legislators or anyone else — except for the judges who of their own volition decide not to participate in next year’s election. Indeed, the Federal Electoral Tribunal has already given the green light for said election, and planning is already underway. Eight of the Supreme Court justices — the same eight who are attempting to place themselves “exceptionally” above the Constitution — have already handed in their resignations as of next year in order to benefit from the generous retirement package provided by the reform.
There is, indeed, more than a whiff of desperation around this vulgar little coup, what in Spanish is called patadas de ahogado, the flailing of a drowning person. This is very likely the reason why, in the face of calls from the Morena base to impeach the offending judges (which its qualified majority permits), President Sheinbaum has preferred to adopt a wait-and-see attitude, making a consistent case against the plotting in her morning press conferences but keeping her powder dry lest it be needed ahead.
But the episode does raise a larger — and largely unresolved — question that has plagued left-leaning governments throughout Latin America: how to defang well-funded lawfare campaigns that clothe themselves in legalese to subvert popular democracy, and how to handle a judiciary that violates the law in the name of defending it, converting itself in the process into a renegade political actor.
The strategy of what Andrés Manuel López Obrador called the “Supreme Conservative Power” is clearly to put Sheinbaum’s administration in an early bind: either knuckle under and accept its wayward ruling or be seen as disobeying the highest court of the land, thus reinforcing the authoritarian image of Morena’s popular government carefully cultivated by the national and international press over the last six years.
With a vote on Alcántara’s proposal scheduled for as soon as this week, it will soon become clear to what extent the justices, on their way out the door, are willing to burn down the house. How Sheinbaum responds will set the tone not only for her administration but for a generation to come.
Kurt Hackbarth is a writer, playwright, freelance journalist, the cofounder of the independent media project “MexElects" and host of Soberanía: The Mexican Politics Podcast.
Claudia Sheinbaum | Image credit: ASAMBLEA INFORMATIVA EN TORREÓN, COAHUILA
Since taking office on October 1 as Mexico’s first woman president, Claudia Sheinbaum has had — to put it mildly — an eventful month.
She has made three trips to Acapulco to coordinate recovery efforts in the aftermath of Hurricane John. She has overseen the passage of key constitutional amendments, including measures to restore the passenger train network (privatized and eliminated in the ’90s), return the energy sector to public control, and authorize the federal housing authority, INFONAVIT, to build much-needed social housing. She has launched new programs to lower the pension age for women, provide home-to-home health care for senior citizens, provide day care for the children of maquiladora and field workers, and ban the sale of junk food in schools. And she has faced her own gruesome welcome wagon of violence, including the beheading of the mayor of the city of Chilpancingo, Guerrero, a pair of car bombings in the state of Guanajuato, and the killing of six migrants in Chiapas after the military opened fire on the truck carrying them, an incident currently under investigation.
But among all of these, the affair really putting her young administration to the test was set off before she took office: the judicial reform amendment, ratified on September 15, which provides for the direct popular election of federal judges.
Judges Run Amok
The judicial reform will roll out in two stages: half of the federal judiciary, including the Supreme Court, will be chosen in a special election in June 2025, and the other half at the time of the midterm elections in 2027. Current justices will have the option of participating in the elections or retiring from their posts.
The Mexican public has repeatedly demonstrated its utter fatigue with justices living high on the hog while leaving everyone else to pick up the pieces of a dysfunctional, profoundly unjust, and highly partisan justice system. At the same time that they stuff the bureaucracy with family members (according to a report by the chief justice of the Supreme Court herself, Norma Piña, the nepotism rate in the judicial bureaucracy in 2022 was a staggering one in two), judges routinely protect high-profile elites while leaving some 87,000 prisoners languishing for years without trials or sentences.
It is to be recalled that Morena ran on the judicial reform during this year’s presidential campaign, asking the public for the qualified majority of two-thirds necessary to pass it and other reforms over the opposition’s objections. Voters obliged. And in a series of polls taken shortly before ratification, support for the direct election of judges ranged from 68 to 75 percent.
Not surprisingly, this enthusiasm is not shared by the judiciary itself. Its guerrilla war against the reform began during the legislative process, when judges attempted to halt congressional debate by means of injunction or, failing that, prevent it from being sent to state legislatures for their consideration. While the idea that the judiciary can intervene to stop a legislature from doing its job is risible on its face — equivalent to Congress dictating to the courts what cases they can and cannot hear — it is further compounded by the fact that Article 61 of Mexico’s law governing the use of said injunctions (the Ley de Amparo), passed by today’s aggrieved opposition when it was in power in 2013, makes abundantly clear that they cannot be used against constitutional amendments.
This did not stop the judiciary, however, from trying again. Once the amendment was officially a done deal, a judge and conservative activist from Veracruz with a series of disciplinary problems ordered it to be stripped from the books within twenty-four hours; if not, she would refer the case to prosecutors, who, she warned, could move to jail the president for up to nine years for contempt. Coolly, Sheinbaum pointed out in her morning press conference on October 24 that it was illegal for the judge to remove something that had already been added to the Official Federal Register and that, by so ordering, it was the judge who had effectively placed herself in contempt.
Then it was the Supreme Court’s turn to get in on the act. Throughout October, it decided to accept a series of petitions submitted by opposition legislators and political parties to stop the reform. That was error number one, as political parties in Mexico do not have the standing to seek injunctions on constitutional matters; as for the justices themselves, the conflict of interest of purporting to rule on a measure that directly affected them was blatantly obvious to all concerned. Undeterred by such niceties, the court’s conservative majority plowed ahead, and, on October 28, Justice Juan Luis Alcántara Carrancá — who hosted a now infamous dinner between Chief Justice Piña and opposition political leaders before the election — presented a draft of his ruling. In language eerily reminiscent of the Bush v. Gore decision of 2000, which infamously limited itself “to the present circumstances,” Alcantára’s text took great pains to present itself as “exceptional” (nine times) and “an exceptionality” (five times). While accepting the settled precedent that a constitutional amendment cannot be unconstitutional, it goes on to contend that the offending parts of the Constitution are not constitutional-level text at all but downgradable to simple “federal electoral law” and thus susceptible to being overturned. In a subsequent interview on Radio Fórmula, former Supreme Court justice José Ramón Cossío (whose Instituto Para el Fortalecimiento del Estado de Derecho NGO is backed by the US soft-interventionist arm USAID) breathlessly threatened that anyone who disobeyed the ruling, be it the president or every last legislator, could be declared “in rebellion,” thrown out of office, and put on trial.
Keeping Her Powder Dry
All of this sounds far more lurid than it actually is. Backed by an enormous popular mandate, Claudia Sheinbaum is not going anywhere, nor are MORENA legislators or anyone else — except for the judges who of their own volition decide not to participate in next year’s election. Indeed, the Federal Electoral Tribunal has already given the green light for said election, and planning is already underway. Eight of the Supreme Court justices — the same eight who are attempting to place themselves “exceptionally” above the Constitution — have already handed in their resignations as of next year in order to benefit from the generous retirement package provided by the reform.
There is, indeed, more than a whiff of desperation around this vulgar little coup, what in Spanish is called patadas de ahogado, the flailing of a drowning person. This is very likely the reason why, in the face of calls from the Morena base to impeach the offending judges (which its qualified majority permits), President Sheinbaum has preferred to adopt a wait-and-see attitude, making a consistent case against the plotting in her morning press conferences but keeping her powder dry lest it be needed ahead.
But the episode does raise a larger — and largely unresolved — question that has plagued left-leaning governments throughout Latin America: how to defang well-funded lawfare campaigns that clothe themselves in legalese to subvert popular democracy, and how to handle a judiciary that violates the law in the name of defending it, converting itself in the process into a renegade political actor.
The strategy of what Andrés Manuel López Obrador called the “Supreme Conservative Power” is clearly to put Sheinbaum’s administration in an early bind: either knuckle under and accept its wayward ruling or be seen as disobeying the highest court of the land, thus reinforcing the authoritarian image of Morena’s popular government carefully cultivated by the national and international press over the last six years.
With a vote on Alcántara’s proposal scheduled for as soon as this week, it will soon become clear to what extent the justices, on their way out the door, are willing to burn down the house. How Sheinbaum responds will set the tone not only for her administration but for a generation to come.
Kurt Hackbarth is a writer, playwright, freelance journalist, the cofounder of the independent media project “MexElects" and host of Soberanía: The Mexican Politics Podcast.
No comments:
Post a Comment