Mexican Judicial Reform: Boost for Democracy or Gift to Drug Cartels?

-Analysis-

Buenos Aires — Populist governments love to control the judiciary. We have seen it in Israeli Prime Minister Benjamin Netanyahu’s attempt to limit the judiciary — presumably to avoid pending lawsuits against himself — and in President Donald J. Trump’s nominations to the U.S. Supreme Court to tilt the balance in favor of conservatives.

Such antics are a classic feature of politics in our region, where liberal democracy is struggling to mature. If we leave aside those shameless dictatorships without checks or balances, we have the example of Brazil, where former President Jair Bolsonaro wanted to appoint four henchmen to the Supreme Court. In El Salvador, President Bukele dismissed the court’s judges and replaced them, while here in Argentina, governments of all political persuasions, including the current one, have been playing 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 of a full transition to democracy there, and the country seemed—wrongly, it turns out—to have moved beyond the PRI’s sinister ways. Because Mexico’s outgoing president, the leftist Andrés Manuel López Obrador (or AMLO), a textbook populist, has imposed his own formula for keeping judges and courts in check: by forcing them to run for office as politicians.

This is a key part of AMLO’s judicial reforms, recently approved by the bicameral legislature, and effectively transforms judges from civil servants into local officials, similar to a mayor or city councilor. His logic must be that his party, MORENA — if it continues to win votes as it has been doing lately — can come to control hundreds of courts, and in effect the judiciary, but always “by the will of the people.”

Whatever the pretense, such moves are not a return to the PRI, but to the way it does things. Like Argentina’s Peronists, the PRI was a national party that embraced conservatives, centrists, and socialists, including AMLO, a stalwart well into the 1980s.

Shaking prosperity?

López Obrador’s judicial reforms may have been inspired by those of Bolivia’s Evo Morales (who briefly sought refuge in Mexico), who transformed the courts into siege engines against the opposition. The situation is not the same in Mexico, of course, with its huge and diversified economy and vital trade ties with the United States (the market for more than 80% of its exports).

The reforms could pose a threat to this prosperity structure.

It has the old and new NAFTA pacts to thank for this, for providing the legal framework and security that brought huge amounts of foreign direct investment into Mexico, lower inflation, growth and jobs that had previously been lacking. All of this is exacerbated by the phenomenon of nearshoring — the practice of moving a business operation to a nearby country.

The reforms could threaten this edifice of prosperity if they create legal ambiguities or court rulings that violate NAFTA terms. They provide for judicial election campaigns as early as 2025 and will reduce the number of Supreme Court justices from 11 to nine.
Concern has already devalued the Mexican peso by 13% since June. The National Association of Magistrates has opposed the law as damaging to its structures, warning that it would open the way for external “interests” to penetrate the functioning of the judiciary. That means political, and possibly mafia, interests.

After the last general election, the ruling MORENA party has an absolute majority in the lower legislative chamber and lacks a senator in the upper chamber. This was recently resolved when a renegade senator from the conservative National Action Party (PAN) was ‘persuaded’ to vote for the reform.

A political transition

Businesses are concerned, and the new president, Claudia Sheinbaum, AMLO’s chosen successor, though popular in her own right, who takes office on October 1, has tried to address these concerns by saying the reform would root out corruption in the courts. That’s not what her mentor thinks: having previously expressed disdain for NAFTA and big business, AMLO recently noted that the reform specifically targets those multinationals he says are “plundering” Mexico.

His successor may be wondering whether he will continue to undermine her authority after his retirement.

Electoral violence on this scale will certainly pose a problem in the election of magistrates.

There is something “Trumpian” about López Obrador, who, oddly enough, has had better relations with President Trump than his Democratic successor. He, too, prefers grand claims to the nitty gritty of facts and figures. He says Mexico has a better health care system than Denmark, while reports indicate that some 30 million poorer Mexicans now receive worse medical care than they did in 2018, before his election. He likes to give the impression that his administration has gotten crime right, but his six-year presidency has been one of the most violent in modern Mexican history, with an average of 30,000 criminal murders a year and the cartels spreading their business across the region.

Violence was clearly visible in Mexico’s June general elections, with some 750 people involved in the process being 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 cough up money, and you can imagine where many will get the money from — if they are not forced to.

Powerful drug cartels

AMLO’s reform is the perfect tool to give Mexico’s ultra-powerful drug cartels the chance to own the backcountry courts and, why not, the Supreme Court. Because they too would love to control the judiciary. So we can rightly give this president credit for taking the worst possible path for Mexico’s democracy and its economy.

AMLO currently has an approval rating of 73% according to polls cited in the national daily, The Universalwhich also explains the party’s electoral success. He kept the economy afloat, the peso rising 25% (through June), while foreign exchange revenues soared during his six-year term. Like his friends Lula and Dilma in Brazil, he has extended the social benefits party to a range of groups, including single mothers, young people in their late teens and pensioners. The minimum wage is about 120% higher than in 2018.

It may be too early to say this reform is a mess, but if and when it happens, the next president will have to clean up the mess.

Still, he has targeted the judiciary, which has stymied some of his larger interventionist projects, such as restoring the state monopoly on electricity. The Supreme Court, citing the constitution, said state monopolies were not allowed. One of López Obrador’s oft-repeated promises is to end wasteful spending, and he maintains that private companies have used NAFTA laws to extract “billions of dollars in subsidies” from the state. Another of his targets has been the state electoral body, INE, which in recent years has helped ensure fairer and cleaner elections. That too has been cut for being too expensive, AMLO says.

It may be too early to call this reform a mess, but if and when it happens, it will be up to the next president, who loyally encouraged it, to clean it up. As for AMLO, posterity may not remember him as a reformer or a great historical figure as he would like, but in fact as the last of the PRI’s monarchical presidents.