[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]
—Francisca Pou Giménez, ITAM, Mexico City
Last July, Andrés Manuel López Obrador (AMLO) won the Mexican presidential election with a historic, landslide victory. Not only did he get an amazing 53% of the vote, but his political party (Morena) and its allies secured 308 Deputies out of 500, and 69 Senators out of 128, therefore enjoying absolute majorities in both Chambers of Congress.[1] The situation at the State level is more nuanced, since only 9 elections were celebrated in July, and the territorial presence of Morena is highly uneven.[2]
Although AMLO led electoral polls all the way long, comfortably ahead of the candidate of the conservative party (PAN), and widely ahead of the candidate of the party that was in power from 2012 and for seven decades in the 20th century (PRI), the size of his victory was unexpected. As it has come to be felt and agreed upon by analysts and citizens alike, the July election was a sort of general plebiscite on the status quo, whose results must be read as a clear and powerful call for the radical transformation of the country. AMLO was voted by its traditional (left) constituencies, but also by millions of people that were not prepared to support parties that have occupied the Presidency in recent times, with a terrible record in terms of violence, death, corruption and inequality. AMLO centered his campaign in the rejection of the “power mafia”, the fight against corruption, the diminution of privilege, and the prioritization of the needs of the poor. With the support of the people —he has repeated time and again— he will push forward Mexico’s “Fourth Transformation” (the previous ones being the Independence movement at the beginnings of the 19th century, Benito Juárez’s Reform movement in the second half of the 19th century, and the Mexican Revolution at the beginning of the 20th century).[3]
Four months have passed since July. During this transition period, set to end on December 1 on his finally taking office, the President-elect has already advanced many initiatives, some of them more controversial than others. He has prepared, for instance, the integration of government teams, with far more women than earlier governments but also with unmistakable representatives of old Mexican politics; he received approval in Congress of a bill that caps the salaries of high officials so that they do not surpass the (relatively modest) salary of the President; he has organized an informal popular consultation on the continuation or cancellation of the highly controversial construction of a new international airport in an ecologically sensitive area; and he has advanced some prospective measures in the areas that pose the more intractable challenges –the gaining of territorial control, the reduction of organized crime, the limitation of total impunity, and ubiquitous violence. While AMLO has emphasized the power of new beginnings and the potential of leading by example, it is by now clear that the seriousness of the country’s condition will make things far more difficult and slow than originally anticipated.[4]
In what follows, rather than focusing on one or another specific initiative, I will briefly identify four general areas scholars should keep an eye on in the years to come. In my view, Mexico’s Fourth Transformation will no doubt offer developments relevant to at least the following fields: forms of constitutional change, anti-corruption reform, authoritarianism/populism/democracy inquiries, and transitional justice.
Constitutional Change
López Obrador is attempting a radical transformation of Mexico without either convening a constitutional assembly or passing a major package of constitutional amendments. This is a surprise, given Mexico constitutional background. As scholars have often remarked, the 1917 Constitution, amended more than 700 times, is an extremely complex and heterogeneous document that poses enormous challenges to its legal and political administration.[5] Yet neither the President-elect nor anybody else in the political space is considering the making of a new constitution. The zeitgeist is one of radical transformation and “new beginnings,” but López Obrador emphasizes the change that comes from agents, political determination, statutory reform and an ethical regeneration of politics –whose promotion has included the commissioning of a (preliminarily puzzling) “moral constitution” with the principles that must guide behavior in the public sphere.
This generates conflicting intuitions: on the one hand, one cannot but welcome a Mexican leader that, for the first time in decades, does not seek to use constitutional amendment as a distracting device, as an attempt to buy short-term legitimacy while secure the means to keep the status quo untouched.[6] On the other, one cannot but wonder how, within such a dysfunctional framework and with so many things already “said” in the Constitution, the Fourth Transformation will succeed at boosting change while fostering the rule of law and taking the constitution seriously.
Anti-corruption reform
Corruption is at the center of political and constitutional developments in all Latin America:[7] in Perú, President Kuczynski stepped down after allegations that his closer collaborators had bought votes in exchange of procurement contracts; in Argentina, former President Kirchner has been indicted under corruption charges, unleashing dynamics that are stirring up the political scene; in Ecuador, President Moreno has undertaken a sophisticated “transition” that, at the impulse of the Council for Citizen Participation, attempts a wholesale replacement of appointees in the various power branches, beset by corruption charges; in Guatemala, to general dismay, President Morales has tried to end the mandate of the International Commission Against Impunity created in 2007 by the UN and the Guatemalan Government (which has uncovered major corruption cases over the last decade), after investigations touched on his close circle; and finally in Brazil, the dire scenario marked by the rise of Bolsonaro is hard to separate from the corruption record of recent governments.
The fight against corruption lies at the core of AMLO’s program. In his view, the resources saved by the end of corruption will make it possible to advance other resource-absorbing points of his program. At the same time, corruption is intimately linked to other major ailments. As anti-corruption specialists have pointed out, in any case, there are several approaches to reform, partly dependent on political and economic conditions: strong leadership is generally necessary, but not sufficient; there is a general choice to be made between a model based on the exercise of political power (in whose context reform opponents are to be outvoted or marginalized) and a contractual model based on consensus (in whose context they are to be coopted); there are certain inherited institutional choices (voting systems, division-of-power designs) that can make it more difficult; there are collective action problems to be faced, and several ways of attempting the crucial articulation between starting reforms and maintaining them.[8] Moreover, some of the new government’s commitments, like the lowering of public sector salaries to undercut privilege, might be risky from an anti-corruption and state-rebuilding stance. Policy-making in this area will therefore require thoughtful consideration.
Authoritarianism/populism/democracy
A third area where Mexican developments will merit carefully study concerns the general shape of Mexican politics, along the axis where democratic-authoritarian-populist markers are analyzed in academic work. While López Obrador was a responsible mayor of Mexico City in the past, and suggestions of his being a radical populist are (to date) groundless,[9] he does share some traits with Latin American left-wing populists,[10] and his political platform is a varied assortment of ingredients with a potential to evolve in very different political directions. Distaste of elitism, and a genuine concern with massive exclusion and deprivation, surely associate AMLO’s program with core dimensions of “thickened” contemporary democratic projects in its various possible instantiations —“neo-constitutional”, “popular”, or other.[11]
They might also evolve, however, towards anti-institutionalism, abuse of power, and social and political polarization. A most problematic feature of the political scenario is that Morena will generally enjoy automatic majorities and the opposition is in complete disarray. In this context, the attitude towards the judiciary is likely to be critical. Yet it is not easy to know exactly what to do. While the Mexican judiciary has problematic traits,[12] any reforms should be made with a view to guaranteeing the preservation (and strengthening) of judicial independence, structurally crucial to assuring a scheme of checks and balances indispensable to prevent an authoritarian drift.
Transitional Justice
Finally, in upcoming years Mexico will enter transitional justice studies. When other Latin American countries were involved in painful efforts in that direction —the various stages of the ambitious and legally sophisticated Colombian peace process are a case in point— Mexico was still indulging in the narrative of its “gradual and peaceful transition”. But it is now clear that, in the last decade, the Mexican state has either collapsed or is actually contributing to a situation where the number of murders and disappearances overmatch those of several 20th-Century Latin American dictatorships.
One of the most praiseworthy signs of the new government is its willingness to abandon the “denial” policy of the former governments and confront the situation. Maybe Mexico is comparatively lucky, in having the possibility of learning from the experience of the past decades around projects of transitional justice. As Ruti Teitel has underlined, while in early debates the role of State actors was prominent and analysis was often based in a sort of zero-sum dichotomous framework (punishment/impunity, justice/peace) revolving around reactions to a violent past,[13] the current approach “engages directly non-state actors at all levels and their behavior and entails changing social norms building civil society, and a demand for adequate institutions and capacity building”.[14] Transitional justice, says Teitel, has “normalized” and is more related to accountability and change with regards to certain kinds of very serious systemic wrongs.[15] This looks close to the situation that Mexico now finds itself immersed in. While the models and tools these new frameworks engage are anything but simple, they may help to analyze and address the unwieldly scenario the Fourth Transformation is committed to managing and ameliorating.
Suggested citation: Francisca Pou Giménez, López Obrador’s Fourth Transformation of Mexico: Four Areas of Scholarly Inquiry, Int’l J. Const. L. Blog, Oct. 24, 2018, at: http://www.iconnectblog.com/2018/10/lopez-obradors-fourth-transformation-of-mexico-four-areas-of-scholarly-inquiry/
[1] Instituto Nacional Electoral, https://computos2018.ine.mx/#/presidencia/nacional/1/1/1/1
[2] Cámara de Diputados, http://sitl.diputados.gob.mx/LXIV_leg/info_diputados.php; Cámara de Senadores, http://www.senado.gob.mx/64/senadores/integracion. About the transfer of Deputies from Partido Verde to Morena in exchange for a vote allowing a Partido Verde senator to return to a state governorship, see “Morena salva a Velasco, el Verde da mayoría absoluta a Morena en Diputados,” http://www.sinembargo.mx/04-09-2018/3, 467002
[3] At the moment, PRI and PAN both control 12 States, Morena controls 5, and 3 more are controlled by other parties. Nación 321, “Así cambiaron los colores del mapa político de México y la Cdmx,” http://www.nacion321.com/elecciones/asi-cambiaron-los-colores-del-mapa-electoral-de-mexico-y-la-cdmx
[4] Elisabeth Malkin and Paulina Villegas, “Mexico President-elect Rethink his Campaign Promises,” https://www.nytimes.com/2018/10/20/world/americas/mexico-lopez-obrador-campaign-promises.html?fbclid=IwAR2cZ7CZJ48uoBeeQls7cAIdR8f3JxFyX9vKVkHcwaBbjrClQP078l3SQfc (accessed October 21, 2018).
[5] See, for instance, Francisca Pou Giménez and Andrea Pozas-Loyo, “The Paradox of Mexican Constitutional Hyper-Reformism: Enabling Peaceful Transition while Blocking Democratic Consolidation,” in Richard Albert, Carlos Bernal Pulido and Juliano Zaiden Benvindo, eds., Constitutional Change and Transformation in Latin America. Oxford, Hart Publishing (forthcoming); see also the contribution of Mariana Velasco Rivera, ibid.
[6] Ana Micaela Alterio and Roberto Niembro consider amendment dynamics one of the elements that shape the strand of authoritarian constitutionalism Mexico has developed. See Ana Micaela Alterio and Roberto Niembro, “Constitutional Culture and Democracy in Mexico”, Graber, Levinson & Tushnet, cit, infra, note 11, p. 147. On the use of constitutional amendment as an elite-driven tool, used to buy preservationist short-term legitimacy, Francisca Pou Giménez, “Las reformas en materia de derechos fundamentales,” in María Amparo Casar and Ignacio Marván, eds. Gobernar sin mayorías (Tauris, 2014), p. 123.
[7] I thank Mauricio Guim for pointing out the constitutional dimension (as opposed to merely political, public-policy, statutory-level dimension) of corruption in present-day Latin America in an informal conversation.
[8] Susan Rose-Ackerman and Bonnie J Palifka, Corruption and Government (CUP, 2015), pp. 415-416 (with internal citation to Merilee Grindle and John Thomas, Public Choice and Public Choice, Johns Hopkins U P, 1991), and more generally, pp. 415-445 (Chapter 13).
[9] Carlos Bravo Regidor and Patrick Iker, “A New Hope for Mexico?,” Dissent, Spring, 2018, https://www.dissentmagazine.org/article/mexico-elections-andres-manuel-lopez-obrador-amlo (for an excellent analysis, done before the election, of the multi-faceted and complex nature of AMLO as a political figure, cautioning about the frequent inaccuracy of superficial portrayals).
[10] As Alejandro Rodiles has persuasively shown, in contrast to Global North right-wing populist strands, which are often anti-immigrant, xenophobic and anti-international law, Latin American left-wing populism —both XX century “classic” strands and contemporary neo-populisms— share none of these traits. See Alejandro Rodiles, “Is there a Populist International Law (in Latin America)?,” non-published manuscript, on file with author.
[11] Mark Graber, “What’s in Crisis? The postwar Constitutional Paradigm, Transformative Constitutionalism, and the Fate of Constitutional Democracy”, in Mark Graber, Sanford Levinson and Mark Tushnet, eds., Constitutional Democracy in Crisis? (OUP, 2018), p. 669.
[12] Julio Ríos-Figueroa, “El deficit meritocrático. Nepotismo y redes familiares en el Poder Judicial de la Federación,” Blog de Nexos, August 28, 2018, https://anticorrupcion.nexos.com.mx/?p=524; the complete report on nepotism is available here: Mexicanos contra la Corrupción y la Impunidad, https://nepotismo.contralacorrupcion.mx/el-deficit-meritocratico/
[13] Ruti Teitel, Globalising Transitional Justice (OUP, 2014), p. xiii.
[14] Ibid., p. xiv.
[15] Ibid., xiv, xv.
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