Mexican Judicial Reform: Boost To Democracy Or Gift To Drug Cartels?

-Analysis-

BUENOS AIRES — Populist governments love to control the judiciary. We’ve seen it in Israeli Prime Minister Benjamin Netanyahu’s bid to curtail judicial powers — probably to wriggle out of pending court cases against himself — and nominations to the U.S. Supreme Court by President Donald J. Trump, to alter its balance in favor of conservatives.

Such shenanigans are a classic feature of politics in our region, where liberal democracy is struggling to mature. Disregarding those brazen dictatorships with no checks or balances, we have the example of Brazil, where former president Jair Bolsonaro sought to appoint four cronies to the supreme court. In El Salvador, President Bukele duly sacked and replaced the court’s judges, while here in Argentina, governments of all political hues including the present one, have dabbled in this game.

In 20th-century Mexico, a subservient judiciary was the norm during the 70-year rule of the Institutional Revolutionary Party (PRI), which “began to end” in 2000. There has been much talk there of a full transition to democracy, and the country appeared — mistakenly it turns out — to have moved on from the PRI’s sinister ways. Because Mexico’s outgoing president, the leftist Andrés Manuel López Obrador (or AMLO), a textbook populist if ever there was one, has imposed his own formula for getting a grip on judges and the courts: by forcing them to run for office like politicians.

This is a key component of AMLO’s judicial reforms, recently approved by the two-chamber legislature, and effectively transforms judges from civil servants into local officials not unlike a mayor or city councillor. His logic must be that his party, MORENA — should it keep winning votes as it has of late — can come to control hundreds of tribunals, and effectively the judicial branch, though always “by the will of the people.”

Whatever its pretense, such moves signal a return not of the PRI, but of its way of doing things. Like the Peronists of Argentina, the PRI was a national party that embraced conservatives, centrists and socialists including AMLO, who was a party stalwart well into the 1980s.

Shaking prosperity?

López Obrador’s judicial reforms might have taken their cue from those of Bolivia’s Evo Morales (who briefly took refuge in Mexico), who turned the courts into siege machines against the opposition. Mexico’s situation is not the same of course, with its vast and diversified economy, and vital trading ties with the United States (the market for over 80% of its exports).

The reforms may threaten this edifice of prosperity.

It has the old and new NAFTA pacts to thank for this, for providing the juridical framework and security that have entailed vast amounts of direct foreign investment in Mexico, lower inflation, growth and jobs that were previously absent. All this is being compounded by the phenomenon of nearshoring — the practice of transferring a business operation to a nearby country.

The reforms may threaten this edifice of prosperity if they mean juridical ambiguities or court rulings that violate NAFTA terms. They envisage election campaigns for judges as early as 2025, and will reduce supreme court judges from 11 to 9.
Concerns have already devalued the Mexican peso by 13% since June. The National Association of Magistrates has opposed the law for harming its structures and warned it would open the way to outside “interests” permeating the judiciary’s workings. That means political, and possibly also mob interests.

Following the last general election, the ruling party MORENA has an absolute majority in the lower legislative chamber, and is short of a senator in the upper chamber. That was recently solved when a rogue senator of the conservative National Action Party (PAN) was ‘persuaded’ to vote for the reform.

A political transition

Businesses are worried, and the incoming president, Claudia Sheinbaum, AMLO’s chosen successor though popular in her own right, who is due to take over on Oct. 1, has sought to address these concerns saying the reform would uproot corruption in the courts. It’s not what her mentor thinks: having previously voiced his disdain for NAFTA and big business, AMLO recently observed that the reform specifically targets those multinationals he says were “ransacking” Mexico.

His successor may be wondering whether or not he will persist once retired, in undermining her authority.

Electoral violence on this scale will certainly be a problem when it comes to electing magistrates.

There is something ‘Trumpian’ about López Obrador who, curiously, enjoyed better relations with President Trump than his Democratic successor. He too prefers big claims to the nitty-gritty of facts and figures. He says Mexico has a better healthcare system than Denmark, when reports indicate that some 30 million poorer Mexicans have worse medical attention now than in 2018, before his election. He likes to give the impression that his administration has tackled crime the right way, yet his six-year presidency has been one of the most violent in modern Mexican history, with an average 30,000 criminal killings a year and the cartels spreading their business across the region.

The violence was evident in Mexico’s June general election, with around 750 people involved in the process being either threatened, kidnapped, or killed as in the case of 34 candidates. Electoral violence on this scale will certainly be a problem when it comes to electing magistrates. The candidates will have to drum up funds, and you can already suspect where many will get the money — if they’re not forced to take it.

Powerful drug cartels

The AMLO reform is the perfect tool to allow Mexico’s uber-powerful drug cartels to own law courts in the hinterland and, why not, the supreme court. For they too would love to control the judiciary. Thus we can fairly credit this president with taking the worst possible path for Mexican democracy and its economy.

Currently, AMLO enjoys a 73% approval rating according to polls cited in the national daily, El Universal, which also explains the party’s electoral success. He managed to keep the economy afloat and boost the peso 25% (until June) as forex earnings ballooned over his six-year term. Like his friends Lula and Dilma in Brazil, he has laid out the social benefits feast for a range of groups including single mothers, youngsters in their late teens and pensioners. The minimum wage is about 120% higher than it was in 2018.

It may be too soon to call this reform a mess, but if and when it happens, it will be for the next president to clear it up.

Yet he had it in for the judiciary, which impeded some of his bigger interventionist projects like restoring the state’s monopoly on electricity. The supreme court, citing the constitution, said state monopolies were not allowed. One of López Obrador’s oft-repeated pledges is to end wasteful costs, and he insists private firms have used NAFTA laws to wrangle “billions of dollars in subsidies” from the state. Another of his targets was the state electoral body, INE, which ensured fairer and cleaner elections in recent years. That too has had its wings clipped as being too costly, according to AMLO.

It may be too soon to call this reform a mess, but if and when it happens, it will be for the next president, who has loyally cheered it on, to clear it up. As for AMLO, posterity may recall him not as a reformer or great historical figure as he would wish, but effectively, as the last of the PRI’s monarchical presidents.