Symposium on the Judicial Overhaul in Mexico Part 3: The Judicial Reform Snowball and the State of Mexican Democracy

—Francisca Pou Giménez, UNAM

[Editors’ Note: This is Part 3 of a symposium on the recent constitutional amendments affecting the judiciary in Mexico. The introduction to the symposium can be found here.  The symposium pieces are cross-posted at ICONnect (in English) and at IberICONnect (in Spanish). We are grateful to Ana Micaela Alterio for her work in organizing the symposium.]

Mexico is leaving behind frenetic weeks in which the legal community has dedicated major efforts to understand and evaluate the judicial reform as best as possible, and to explain it to different audiences. Difficult weeks spent in efforts to articulate the reasons why the reform has seemed to so many of us unnecessary, counterproductive, technically flawed and, above all, dangerous for democracy, social justice and the people in the service of which its promoters portrayed it. Gloomy weeks in which the impossibility of finding reasons to support the reform has placed us in an uncomfortable space, opposed to a majority uninformed and therefore indifferent before its contents and consequences, and to a minority aligned with the watchwords of a post-truth official discourse that has defended the reform by affirming that it does the opposite of what it actually attains.

In this post, in a necessarily simplified manner, I outline some elements of the reform’s broader context, having in mind external audiences that have not been following closely Mexican developments. The concern generated by the reform is not fully appreciated if this broader background is not taken into consideration. 

An unexpected pattern of democratic backsliding

September 2024 will be remembered as the month in which Mexico took a path of no return, whose mid-term destination we still ignore. The judicial reform, however, is not an isolated event, but rather the culmination and the unexpected final mutation of a process that has unfolded over the past six years. Andrés Manuel López Obrador (AMLO) was elected President on a leftist political platform that received massive support from citizens fed up with the mediocre performance of his predecessors and full of genuine demands for greater social justice. Unfortunately, his government has deployed the standard contemporary authoritarian populist playbook (with some personal touches I will momentarily mention). His administration has been marked by anti-pluralism, rejection of constitutional limits, populist demagogy, militarization of public affairs and the deployment of economic and social policies of neoliberal continuity.

The aversion to pluralism has translated into daily attacks in the morning conference (often followed by action and regulation) on almost all sectors of society: the press, CSOs, the scientific community, universities, the entire middle class…, all vilified as conservatives and enemies of the “4T” (the fourth transformation of Mexico). The ubiquitous rejection of constitutional counterweights has translated into criticism, weakening and attempted co-optation of autonomous constitutional agencies, especially the National Electoral Institute, and into continuous attacks on the judiciary, particularly the Supreme Court. Populist demagogy has been the constant for a leader who has proclaimed himself to be the sole, true representative of the people against “corrupt elites” and has generalized a public discourse of permanent confrontation and largely unconcerned with the veracity of facts. Militarization began with the creation of a military-trained National Guard and continued with the transfer to the Army and the Navy not only of public security functions, but also the administration of ports and airports, and the execution of mega public works (the Mayan Train, the Felipe Angeles airport and the Transoceanic Corridor), giving to the military immense economic power. In the socioeconomic domain, AMLO’s government has weakened administrative structures and has massively increased unconditional cash transfers instead of undertaking reforms aimed at providing the structural preconditions for citizenship and welfare. Increase in the minimum wage and the slight reduction in non-extreme poverty at the end of his term are achievements that pale in the face of increases in basic goods and the degradation of health and educational coverage.

AMLO’s personal “touches” in the context of constitutional retrogression narratives are a strategic “legalism” less accentuated than the one by other leaders, as he has frequently criticized legal requirements and procedural sloppiness has prevailed under his administration; unleashed pragmatism in relations with the US (and consequently, in migratory policy); and a “laissez-faire” policy with regards to drug cartels which, although at the beginning appeared more promising than confrontation, has left great chunks of the territory under the quasi-absolute control of organized crime, submerged in unspeakable levels of violence.

The snowball

Faced an inert and pitiful political opposition, this “program” has been advancing throughout the six-year term without too many obstacles, with some counterpoint at the hands of the autonomous bodies and the judiciary and, since 2021, with the limitation imposed by the fact that Morena lost in the mid-term elections the majority needed to amend alone the constitution. This circumstance prevented the President from having passed a constitutional reform known as “Plan A“: the replacement of INE by a National Institute of Elections and Consultations integrated by members elected by universal suffrage —a circumstance that subsequently led the President to push for the approval of “Plan B“: a reform of merely legal rank drastically reducing INE’s administrative capacities and endangering the adequate fulfillment of its functions.

An increasingly weakened Supreme Court—the President has been able to appoint five of its members, instead of the usual three, and sought its political control by getting close to the former President of the Supreme Court—certainly invalidated some hot issues that were in open contradiction with the Constitution: the transfer of the National Guard to military command (contrary to Article 21 C Mx); the extension of the mandate of the President of the Supreme Court (contrary to Article 97 C Mx); and the decree declaring to be “national security” the pharaonic public works, thus eliminating the need for prior permits, environmental assessments and other rules of execution. But the Court did notinvalidate, for example, the militarist decree that enabled the “temporary” participation of the armed forces in public security tasks, under the argument that it merely reproduced the transitory provision of a constitutional reform, nor the amendments to the Law of the Electric Industry that the President had promoted to increase state control over the generation of energy, despite its regressive nature in terms of environmental protection. It also avoided direct confrontation with the Executive by resolving with an ambiguous pirouette the constitutionality of the popular consultation with which the President intended to enable criminal prosecution of former presidents. The Court declared unconstitutional several laws for flagrant violations of legislative procedure—among them Plan B— but followed previous case law in not daring to develop a doctrine of unconstitutional constitutional amendments, not even for procedural flaws. The irony of the events of September 2024 is that they destroy one of the least politicized and most gradualist and moderate judiciaries vis-a-vis the other branches judiciaries in Latin America—which, for the same reason, lacking sufficient relevance and accumulated social legitimacy before the eyes of citizens, has been the perfect scapegoat.   

In February 2024, the President sent to Congress eighteen constitutional bills and two statutory bills. One of them was “Plan C” (seeking to reform/neutralize the Court that had dared to invalidate Plan B and, making the most of the ride, the rest of the state and federal judiciary) but to it were added a significant number of other measures. Two of them were to be celebrated, such as the special provisions for areas confronting high scarcity of water and the reinforcement of indigenous and afro-mexican rights. Some were absurd, such as prohibiting the use of vapes in the Constitution. And several were very dangerous, such as the extension (yet again) of automatic preventive imprisonment; the definitive placement of the National Guard under military command and the enabling of military action in all areas of civilian life; the disappearance of the main autonomous agencies, among them the anti-trust and transparency ones; the electoral reform; and the judicial reform. The judicial reform, in particular, seemed a mockery: it left unaddressed the causes behind impunity, insufficient access to justice and other deficiencies of the system (the prosecutors’ office, the police, procedural complexity, the weakness of state courts) and envisaged radical measures that mandated the dismissal of all active state and federal judges (around 6,000 posts), eliminated the system of meritocratic career judges and replaced it with election by popular vote, clearly aimed at politically subordinating the judiciary both ex ante (given the ballot list system) and ex post (through the creation of a Disciplinary Tribunal with open jurisdiction), weakening it as a branch in almost all relevant aspects.   

Plan C (as the whole package was soon called) was taken by many as a sort of symbolic final political move by AMLO, in the hope that the June election would generate a different panorama, with a different President and distributed political majorities. But Morena won the elections by wide margins. The use of the state machinery and other classic PRI-style techniques, the political returns of cash transfers and social programs, the absence of good political alternatives, the willingness of many on the left to give a confidence vote to a woman who seemed rational and prepared, and the enormous popular charisma of a leader capable of neutralizing any data against him, no matter how serious, gave the ruling coalition 54% of the vote. Under the interpretation made by the (also weakened) electoral authorities of over-representation rules, this gave the Morena-led coalition 73% of the seats in the Chamber of Deputies. In the Senate, the ruling coalition fell only three senators below the majority needed to amend the constitution.

Two days after the elections, a frenzied political dynamic unleashed, driven by a single will: the will of the outgoing President to pass in Congress —by any means, as fast as possible, before October 1— the judicial reform and other selected ingredients of Plan C. Nothing during this transition period has been democratic: simulation in the official dialogue forums and ignorance of many others that tried to give a genuine debate on the reform; indifference to the massive mobilizations of students and judicial workers; hastiness in parliamentary proceedings, divided between the outgoing and the incoming Congress, devoid of deliberation, echoing a single voice. In the Chamber of Deputies, the reform was voted on under conditions that make difficult it to even ascertain if there was a regular quorum. In the Senate, Morena dragged two opposition senators to its ranks and the maneuvers to obtain the additional vote are a monument to political rot. State legislatures, half of which were required to approve the reform, have rushed to do so—in slightly more than 21 hours, 17 of them had done so. An overwhelming political machinery has been enlarging an unstoppable snowball, which, after the approval of the judicial reform, has continued with the final militarization of the National Guard and with historic changes to Article 129, which now allows the armed forces to perform in times of peace all tasks provided for in ordinary law.

The (unsustainable) persistence of the old

While the reform is challenged before the courts and the National Electoral Institute is forced to launch the proceedings that will lead to next June’s judicial election, Claudia Sheinbaum receives on October 1 a country burdened by unmanageable problems: drug trafficking, violence, inequality, militarization, public debt, climate crisis. Now, to these are added the problems generated at the speed of sound by a President who has not wanted to relinquish power during his lame-duck period and who has used it in ways that seriously compromise the incoming administration. It was irrational to approve a reform that did not solve any problems and generated many new ones. But it is irrationality that has prevailed—or, at any rate, a rationality at the service of goals incompatible with democracy and social justice.

The Mexican judicial reform of 2024 is not the consolidation of the new, but rather the last grimace of the old, the legacy of a type of politics never entirely gone away, a testimony of what remains untransformed. Mexico’s imperfect institutionality, built up over 30 years, seems doomed to collapse. The times of gradual improvement have been swept away by the autocratic snowball of September 2024, and we do not know what lies ahead. At worst, an authoritarian or mixed regime. At best, a difficult new start that should generate, over time, new and better democratic institutions.

Suggested citation: Francisca Pou Giménez, Symposium on the Judicial Overhaul in Mexico Part 3: The Judicial Reform Snowball and the State of Mexican Democracy, Int’l J. Const. L. Blog, Oct. 2, 2024, at: http://www.iconnectblog.com/symposium-on-the-judicial-overhaul-in-mexico-part-3-the-judicial-reform-snowball-and-the-state-of-mexican-democracy/