Some people, including three of the Supreme Court judges, are calling it an attempted “coup”. Unsurprisingly, Washington’s fingerprints are all over this.
On Tuesday, Claudia Sheinbaum was sworn in as Mexico’s first ever female president, and she already has her work cut out. Having chosen not to invite Spain’s King Felipe VI to her inauguration over his refusal five years ago to apologise for Spain’s colonial excesses in Mexico, Sheinbaum now has to grapple with a diplomatic crisis with Madrid.
But the biggest problem lies closer to home with a Supreme Court that is determined to derail, or at least delay for as long as possible, the now-former AMLO government’s most important constitutional reform. And in that endeavour it can count on the support of the US government.
For the first time ever, Mexico’s Supreme Court of Justice of the Nation (SCJN) has decided to submit a constitutional reform for review. The reform in question involves a root-and-branch restructuring of the judicial system and it has already passed both legislative houses with the necessary two-thirds majorities. It is bitterly opposed by members of Mexico’s opposition parties, the judiciary, big business lobbies, and the US and Canadian governments.
One “Last Bullet”
Yesterday (Oct. 3), the SCJN admitted an appeal against the government’s judicial reform program by a majority of eight votes to three. With this ruling, the Supreme Court hands over the dispute consideration to one of the judges that voted in favour of the resolution. The court could also issue a stay, essentially suspending the constitutional amendment. The Mexican financial daily El Financiero described the ruling as “the last bullet” (interesting choice of words) against the now former Mexican President Andrés Manuel López Obrador’s “Plan-C” reforms.
Said reforms seek to radically reconfigure the way Mexico’s justice system works. Most controversially, judges and magistrates at all levels of the system will no longer be appointed but instead be elected by local citizens in elections scheduled to take place in 2025 and 2027. Sitting judges, including Supreme Court jusges, will have to win the people’s vote if they want to continue working. New institutions will be created to regulate procedures as well as combat the widespread corruption that has plagued Mexican justice for many decades.
This, insists the AMLO government, is all necessary because two of the main structural causes of corruption, impunity and lack of justice in Mexico are: a) the absence of true judicial independence of the institutions charged with delivering justice; and b) the ever widening gap between Mexican society and the judicial authorities that oversee the legal processes at all levels of the system, from the local and district courts to Mexico’s Supreme Court.
There is some truth to this. And making judges electorally accountable may go some way to remedying these problems, but it also poses a threat to judicial independence and impartiality, of which there is already scant supply. As some critics have argued, with AMLO’s Morena party already dominating both the executive and the legislative, there is a danger that it will end up taking control of all three branches of government — just like the Institutional Revolutionary Party, or PRI, that held uninterrupted power in the country for 71 years (1929-2000).
That said, as I wrote in my previous piece on this issue, the AMLO government has the constitutional right to pursue these reforms, enjoys the support of roughly two-thirds of the Mexican public in doing so, and is following established legal procedures.
A Fierce Clash
Yesterday’s session in the Supreme Court saw an unusually fierce clash of views among the sitting judges. The Supreme Court President Norma Piña claimed that the law is clear that its members can analyse acts that may violate judicial independence. While the majority in favour argued that the Court is not yet making a “substantive” decision on the reform, the three judges that voted against the resolution warned that a “coup” is under way.
Judge Lenia Batres Guadarrama argued that the Court is “arrogating to itself powers it does not have”, such as the power to submit changes to the Constitution approved by the Legislative Branch for review. In doing so, she said, it is violating “the principle of constitutional supremacy, as well as the division of powers and the Constitutional Rule of Law”:
“The SCJN would be carrying out… a real coup d’état by trying to place under constitutional control the work of the reforming power, which has participated in the process of constitutional reform in matters of the Judiciary in strict compliance with the provisions of Article 39 of the Constitution, which establishes that all public power emanates from the people and is instituted for their benefit”.
Another judge, Yasmín Esquivel Mossa, described the court’s proposed resolution as a “precursor to a constitutional coup”:
“The Court wants to ignore the reforming power of the Constitution. It wants to create an unacceptable constitutional crisis, sending the message that this Court can overturn a constitutional reform in an administrative procedure provided for in the organic law of the Judicial Branch of the Federation.”
Senate president Gerardo Fernandez Norona, a member of the governing Morena party, said the Supreme Court “has proven its factional nature, assuming itself as the supreme power, above the legislative power, the executive power and, above all, the sovereign power: the people of Mexico.”
US Fingerprints
After passing both legislative houses in mid-September, the AMLO government’s proposed judicial reform program was supposed to be done and dusted by now. But a powerful minority of stakeholders within the country, including business lobbies, legacy media and opposition parties, are determined to sabotage it, and they have chosen the perfect moment to do so: during the first few days of Sheinbaum’s mandate.
Unsurprisingly, Washington’s fingerprints are all over this. As readers may recall from our previous piece on this Mexican showdown, in late August, the US Ambassador to Mexico, Ken Salazar, sent a very public communique warning that the proposed judicial reforms could have serious consequences for US trade relations with its biggest trade partner.
Days earlier, the Council of Global Enterprises, representing 60 multinational corporations with operations in Mexico, expressed their “grave” concerns about the dampening effect the reforms could have on investment in Mexico. The lobbying group’s members include Walmart, AT&T, Cargill, General Motors, Pepsico, VISA, Exxon Mobil, Bayer and Fedex.
This showdown is not just about electing judges. The judicial reform is one of over a dozen proposed reforms that the government intends to enact in in the areas of energy, mining, fracking, GM foods, labour laws, housing, indigenous rights, women’s rights, universal health care (imagine that, US readers!) and water management. And some of those reforms are likely to affect the ability of corporations, both domestic and foreign, to stuff their pockets.
While Ambassador Salazar toned down his meddling after AMLO took the largely symbolic step of putting his government’s relations with the US and Canadian Embassy’s on ice, the US government has continued to interfere. Just days ago, the National Endowment of Democracy, which has spent the past six years financing political opposition groups in Mexico, published an article in its Journal of Democracy subtly titled “Mexico’s Democratic Disaster”. Here’s how it begins:
The country’s outgoing president is determined to bulldoze Mexico’s judicial system. His attack on the rule of law is even worse than people realize.
Mexican President Andrés Manuel López Obrador (AMLO), with only two weeks left in office, signed into law a raft of constitutional amendments that will remove nearly seven-thousand state and federal judges and replace them with popularly elected ones. The amendments approved on September 15 — just before his protégé, Claudia Sheinbaum, takes the helm — are a last-ditch effort in his longstanding plan to undermine democracy in Mexico.
What the article doesn’t mention, just as Salazar didn’t mention in his communique, is that many US judges are elected, albeit not those on the Supreme Court. As I noted in my previous piece, there are other elements of US hypocrisy on display — for example, the fact that over the past year-and-a-half the outgoing Biden administration has tried just about every lawfare trick in the book to get Trump behind bars, or at least disqualified from the ballot, to no avail.
The Biden Administration is now trying to fast track its own reforms of the US Supreme Court, including the imposition of term limits for SC judges as well as a constitutional amendment to “make clear there is no immunity for crimes a former president committed while in office.” While the reform is extremely unlikely to pass As the Supreme Court blog notes, the fact that constitutional amendments in the US require a two-thirds vote of both houses, followed by ratification by three-quarters of the states renders “passage of such an amendment extremely unlikely, if not all but impossible, at this time.”
As if the NED article wasn’t enough, the Washington-based Inter-American Commission on Human Rights (IACHR) has agreed to hold a hearing on November 12 to hear the complaints of the Mexico’s National Association of Circuit Magistrates and District Judges (JUFED) regarding the judicial reform. At the hearing, the delegation representing JUFED will be able to present its arguments for why the judicial reform represents a breach by the Mexican State of the Inter-American Convention on Human Rights.
Opponents of the bill hope the IACHR will issue precautionary measures that nudge Claudia Sheinbaum’s new government into opening dialogue with the workers of the Judicial Branch of the Federation regarding this reform. The IACHR is an organ of the Organization of American States (OAS), which itself has long served as a tool of US hegemony on the American continent as well as a facilitator of coups such as the one that took place against Bolivia’s then-President Evo Morales in 2019.
What happens next will depend on Claudia Sheinbaum and the advice she will no doubt be getting from AMLO. The nuclear — and quite likely best — option will be to shut down the Supreme Court and replace most or all of its members. After all, there is little chance of Sheinbaum being able to advance the government’s reform agenda if Mexico’s Supreme Court is willing to break just about every rule in its own book to prevent her from doing so — especially if it enjoys the support of the OAS.
Such an act will no doubt draw even louder howls of protest that Mexico’s new government is bludgeoning democracy to death. But AMLO himself has already described the US’ role in this “strictly domestic matter of the Mexican State” as “unacceptable interference.” Also, in her defence Sheinbaum could simply point to the time in 1995 when the recently elected President Ernesto Zedillo, one of Mexico’s most neoliberal presidents, not only shut down the Supreme Court but also culled the number of its judges from 26 to 11 — with not even the slightest whimper of protest from Washington.