President Claudia Sheinbaum, her governing party, Morena, and arguably Mexico as a whole just dodged a rather large bullet.
Despite her landslide victory and her party’s super-majority in both legislative houses, allowing for constitutional changes, Mexican President Claudia Sheinbaum’s recent assumption of power has been all but smooth. As we reported just over a month ago, on the third day of her presidency, Mexico’s Supreme Court plunged the country into a constitutional crisis by seeking to derail, or at least delay for as long as possible, the now-former AMLO government’s judicial reform package, which had already passed both houses:
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.
[On October 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 reform. 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.
That last bullet has now been spent, and it missed the target narrowly. On Tuesday [Nov 5], the Supreme Court met to rule on whether to strike down key parts of the judicial overhaul, including drastically scaling back the election of judges and magistrates by popular vote, one of the most controversial aspects of the reform.
If the Supreme Court ruled in favour of the resolution and the Sheinbaum government stuck to its guns, it would set up “a direct confrontation between two pillars of government that, legal scholars say, has little to no precedent in recent Mexican history,” wrote the New York Times last week (h/t Robin Kash).
Sheinbaum said she was unwilling to negotiate “what the people have decided and is already part of the Constitution” while the eight judges who had voted to admit the appeal were now expected to vote in favour of it. For the resolution to pass, eight out of eleven votes were needed. A full-blown constitutional crisis seemed inevitable — until one of the eight judges broke ranks and voted against the resolution, arguing that the country’s highest court does not have the power “to say what the Constitution should or should not include.”
“Wow, Wow, Wow!”
Eight versus three suddenly became seven versus four: one vote short. But then the unthinkable happened: the court’s president, Norma Piña, suggested that the minimum number of votes be reduced from eight to six. Even some of Piña’s fellow judges were struck by this desperate attempt by Mexico’s most senior judge to change the rules of the game in the middle of the game. The judge sitting next to Piña, who had voted against the resolution, summed up the moment with three words (in English): “wow, wow, wow!”
“It was blatant confirmation of the court’s political intentions, which went far beyond what you’d expect in a judicial debate,” said the veteran political commentator Denise Maerker. “It disqualified [the whole process]… It was a political ruse that ended up exposing the president of the court and the terrible job she has done presiding over the court.”
Days before the hearing, it was revealed that in December Piña had met up with the leader of the Institutional Revolutionary Party, Alejandro Moreno Cárdenas, at the home of fellow Supreme Court judge Juan Luis González Alcántara Carrancá — and not at the Mexican Institute of Culture, as Piña had claimed. Among the issues discussed was the development of a joint plan between Piña and the main opposition parties to prevent Sheinbaum and Morena from winning the June 2 elections.
The plan clearly didn’t work: Sheinbaum ending up winning the biggest majority in modern Mexican history while Morena secured qualified majorities in both legislative houses, giving them the power to pass sweeping reforms to Mexico’s constitution.
In the end, most of the judges rejected Piña’s absurd proposal to reduce the minimum majority needed for the resolution to pass from eight to six, including even Carrancá, who presented the resolution, leaving Piña little choice but to grudgingly reject the case. In a statement, the court announced that “in absence of the… eight votes necessary to invalidate various precepts contemplated in the draft resolution, the plenary of the Highest Constitutional Court dismissed the concepts of invalidity.”
“Plan D”
Even if the court had voted in favour, Sheinbaum apparently had a plan B — or as she calls it, “plan D” — up her sleeve, which would have essentially involved choosing a new Supreme Court judge who would take the oath of office in December, after the scheduled departure of Minister Luis María Aguilar. That way the ruling party would have four judges in its favour and thus leave the Supreme Court’s plenary unable to approve actions of unconstitutionality on future occasions until the election was held in 2025.
But by December Mexico’s three legislative branches would be locked in an unprecedented constitutional showdown. The crisis would no doubt have extended beyond Mexico’s borders.
As I reported in my previous post, the Washington-based Inter-American Commission on Human Rights (IACHR) has agreed to hold a session 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.
If the Supreme Court had voted in favour of Carrancá’s proposal to amend the judicial reform and the Mexican government had chosen to ignore or dismiss that verdict, it would have signified the country’s “rupture” with the inter-American system as well as with international conventions on justice and human rights, notes Argentine constitutional theory professor Roberto Gargarellait.
Several international organisations are already following events in Mexico closely, including the Inter-American Commission on Human Rights (IACHR), the Inter-American Court of Human Rights, the United Nations Rapporteur on the Independence of Judges and Lawyers, the UN Human Rights Council and the Venice Commission, a consultative body of the European Council on constitutional law, of which Mexico is a member.
Dodging a Very Large Bullet
In other words, President Sheinbaum, her governing party, Morena, and arguably the Mexican people at large just dodged a rather large bullet. The judicial reform’s last legal obstacles are finally out of the way — thanks to the vote of one judge. The protests and strikes of judges and court employees are also fizzling out. Even the US government appears to be holding its tongue after AMLO took the largely symbolic step of putting his government’s relations with the US and Canadian Embassy’s on ice following their recent attempts to derail the judicial reform.
Now that the reform has finally overcome the myriad legal impediments in its way, the Sheinbaum government can begin focusing on the rest of its sweeping reform agenda. That agenda includes over a dozen proposed reforms that the government intends to enact in the areas of energy, mining, fracking, GM foods, labour laws, housing, indigenous rights, women’s rights, universal health care and water management.
The mining reforms include a proposed ban on open-pit mining while a package of agricultural reforms proposes to enshrine in the constitution the AMLO government’s 2023 decree banning the use of genetically modified corn for human use — an issue that is already the subject of an investor state dispute between Mexico and its North American trade partners, the United States and Canada. The government is also seeking to authorise a constitutional ban on fracking.
Earlier this week, Mexico’s Senate passed a reform that will allow the Institute of the National Housing Fund for Workers (Infonavit) to build and lease homes for workers — for the first time since the ’90s, according to El Imparcial de Oaxaca. The reform proposes modifications to Article 123 of the Constitution aimed at establishing Infonavit as a social housing system. This will allow workers to access sufficient credit to acquire, build or improve a home — or at least that is the intention.
Some of those reforms, if effectively implemented, will affect the ability of corporations, both domestic and foreign, to stuff their pockets. For decades they have been able to count on the support of a pliant judiciary that has faithfully served and protected the interests of the rich and powerful. They include Mexico’s third richest man, Ricardo Salinas Pliego, whose conglomerate, Grupo Salinas, the Supreme Court insulated from having to pay hundreds of millions of dollars it owes in unpaid taxes as well as to US investment funds. Said funds are now trying to recoup their investment by suing the Mexican government at the World Trade’s arbitration court.
While Sheinbaum has insisted that the judicial reform is strictly a pro-democracy measure that will have little to no impact on Mexico’s business landscape in an attempt to assuage investor fears, AMLO, who devised the plan, said in one of his last press conferences that some of the sweeping changes are aimed squarely at foreign companies.
“Corrupt judges, magistrates, ministers, it is not possible for them to defend that… Are they going to continue defending foreign companies that come to loot, to steal, to affect the economy of Mexicans?… Are they going to continue to represent these companies?”
Time will soon tell. Now that the way is clear, the first batch of elections of judges and magistrates is scheduled to take place on June 1, 2025 when a total of 850 judges will be chosen by popular vote. In the meantime, the Sheinbaum government will be shifting its focus from a barely averted constitutional crisis at home to a challenge of arguably even greater proportions on its northern border: the election of Donald J Trump, and what that could mean for Mexico. And that will be the topic of a future article.
* As I’ve written before, the reform includes a provision that 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 judges, 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, insisted the AMLO government, is 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.