Why Institutional Reputation Matters

Earlier this year, the President of Mexico proposed a constitutional amendment to reform the judicial branch, which is likely to be adopted in the coming weeks. While framed as an attempt to restore the legitimacy and independence of the judiciary, the amendment is, in reality, an exercise of abusive constitutionalism, aimed at capturing the judiciary and undermining its capacity to check the executive’s power. In this blogpost, I discuss one of the main strategies that enabled this judicial overhaul: the President’s persistent and systematic defamatory attacks on the judiciary. I argue that Mexico’s case illustrates the increasing significance of defamation as a tool through which governments with authoritarian tendencies seek to stifle critics, disempower institutions that serve as check and balances to their power, and escape accountability. I conclude that properly facing the threat of institutional defamation requires us to reassess the importance of the right to reputation and to acknowledge that it has a social dimension which is essential not only for our collective pursuit of truth, but also for the survival of our constitutional democracies.

The False Promises of Mexico’s Judicial Reform

In his proposal to reform the judicial branch, Mexico’s President claims that the country’s judiciary is facing a serious legitimacy crisis. According to him, the Mexican people perceive that judges are not independent; instead of implementing the law, they have allegedly subverted it to advance the interest of a privileged few. Under these conditions, the President asserts, the judiciary does not have the legitimacy and autonomy required to perform its role in Mexico’s constitutional democracy. To solve this problem, his initiative aims to subject every judicial appointment in the country to popular vote. The President argues that the democratic election of judges would reduce the influence of private actors over the judiciary, thus restoring citizens’ trust in the judicial system. In other words, it would empower the judiciary by increasing its democratic legitimacy and ensuring its independence.

In reality, the reform would not contribute to these laudable purposes. On the contrary, it can only be understood as a form of abusive constitutionalism: it undermines the basic principles of the constitutional order which it supposedly seeks to advance. As previously argued on this blog, the amendment is part of a set of reforms that attempts to capture and weaken independent institutions that operate as checks and balances to the President and his party, MORENA. Even with modifications recently approved by Mexico’s House of Representatives, the amendment would require the removal of every judge at the federal and local level by 2027. Their replacements would be elected among candidates nominated by the executive, legislative, and judicial branches. The first two are predominantly controlled by MORENA. Furthermore, the amendment would create a democratically elected Judicial Disciplinary Tribunal and empower it to remove judges on the basis of vague and open-ended grounds (like violating principles of professionalism and excellence).

While done with a promise of greater democratic legitimacy and independence from private power, these goals are unlikely to materialize. Citizens will only be able to vote for candidates nominated by the political elites. Moreover, given the lack of public funding, candidates will require support from private actors to run an effective campaign. Judicial elections also further expose the judiciary to organized crime, which has increasingly influenced elections through political violence. Indeed, during this year’s election cycle alone, more than 230 political murders were registered, including the assassination of at least 30 political candidates. Finally, the exercise will not lead to meaningful and informed democratic decisions, given the enormous number of candidates that the citizenry would be required to evaluate. In Mexico City, for instance, voters would need to assess approximately 2000 candidates to elect more than 300 judges. In short, this “democratic” experiment is likely to end up like the election of judges in Bolivia in 2017: with 65% of voters purposely annulling their ballots or leaving them blank. This is the “democratic legitimacy” and “independence” we are to receive in exchange for the capture of Mexico’s judiciary.

The Judiciary’s Legitimacy Crisis as a Result of Institutional Defamation

The President is right when he claims that the judiciary faces a legitimacy crisis. Otherwise, his proposal would have triggered more forceful opposition from the citizenry, both at the ballots and in the streets. Nevertheless, it is rather ironic that the President portrays himself as the savior of Mexico’s judiciary. Afterall, its legitimacy crisis was, to a considerable extent, meticulously orchestrated and brought about by him.

There is no doubt that the justice system in Mexico has serious flaws. Justice is slow, costly, and not accessible to all. Approximately 90% of violent crimes go unpunished, in a country which had more than 30.000 murders last year. But these problems are complex and cannot be attributed solely nor mainly to judges. They are also the result of complex judicial procedures and rules of appeal, the proliferation of deficient law schools and the lack of a mandatory bar exam; insufficient funding for public defenders; and, above all, the poor performance of prosecutors’ offices, which only prosecute 0.8% of committed crimes.

However, carrying out a careful assessment of the justice system would not serve the President’s purposes. Instead, he attributes its problems to judges’ lack of integrity, against whom he has run a systematic defamation campaign during his daily press conferences. For example, he accused the entire judiciary of being “rotten, beyond any remedy” and responsible for the impunity that still persists in the country. He claimed that, in the last 40 years, the judiciary has not done anything for the Mexican people. Without providing evidence and in response to decisions he disliked, the President charged a majority of the Supreme Court Justices with forming a conservative block, “following the old practices of the [previous] authoritarian and corrupt regime, characterized by injustice, collusion and subordination to organized and white collar crime”. He called Justices he nominated traitors simply for upholding a constitutional provision which establishes that the recently created National Guard must be civil in character, after he attempted to transfer its control to the Mexican army. Similarly, he accused several federal judges of being criminal and corrupt, and of defending delinquents without seriously assessing their judgments. The practically imminent approval of his amendment initiative suggests that his defamation campaign has been successful.

Judges are not the only victims of the President’s attacks. Defamation has become a general strategy to disempower public officials that work in other autonomous institutions tasked with checking the executive’s power, which the President also plans to eliminate or weaken. For example, the President accused both the commissioners of the National Transparency Institute of being useless except for concealing acts of corruption of public officials and the ex-councilor president of the National Electoral Institute of lacking principles and ideals, as well as being racist and phony.

Similar tactics have also been used against members of civil society that denounce governmental abuse and violations of rights. Without proof, several news organizations and journalists critical of his administration have repeatedly been accused of being conservative, fifí (privileged), and part of the mafia in power. Moreover, non-governmental organizations, like Mexicanos Contra la Corrupción and Centro Prodh have been charged with being corrupt and hypocritical, and even with defending the people responsible for the human right massacre in Ayotzinapa, in which 43 students were forcibly abducted by state authorities.

The President’s Abuse of Free Speech

In short, defamation has become one of the main tools used by the President to intimidate critics and undermine their credibility, as well as to disempower institutions and groups that function as checks and balances to his power. Unsurprisingly, he has been condemned for this practice by international organizations, particularly when his remarks are directed towards journalists and judges. In response to these criticisms, the President usually insists that he is only exercising his freedom of expression. Regrettably, the constitutional doctrine of Mexico’s Supreme Court does not provide a convincing answer to the President’s rebuttal. In fact, the Court’s conceptualization of the conflict between free speech and reputation in defamation cases involving public officials and public figures –that is, people that are famous or involved in matters of public concern– makes it difficult to explain why the President’s defamatory messages are harmful and establishes considerable obstacles to prevent and redress the harms they cause.

Following the Interamerican Court of Human Rights, the Supreme Court has emphasized that free speech not only has an individual dimension but also a social one; it is important to protect the interest of speakers to express their own ideas, but also to ensure the right of audiences of receiving information and ideas of others. For the Court, it is this social dimension that makes freedom of speech indispensable for the appropriate functioning of democracy. After all, free speech is necessary to ensure that the community is properly informed, and “a society that is not well-informed is not truly free.”

In contrast, although the Court has recognized the importance of reputation, it conceptualized it as exclusively comprising an individual dimension. The Court assumes that the reasons to protect reputation solely relate to the interests of its rightsholders: to protect their dignity, their job opportunities, and the esteem that others have of them. And, in the case of public officials and public figures, this individual dimension is portrayed as less important. Following the US Supreme Court in Gertz, the Mexican Supreme Court ruled that, by accepting greater public scrutiny, public figures and officials have voluntarily exposed themselves to greater risk of defamation. For this reason, the Court held that speakers can only be held liable for defamatory statements regarding public officials and figures when the latter achieve the extremely difficult task of proving that the statements were made with actual malice, that is with knowledge of their falsity or serious doubts as to their veracity.

The Neglect of the Social Dimension of Reputation

Understood in this way, the defamation of public officials –like judges– and public figures –like journalists and leaders of political movements and non-governmental organizations– seems to be a minor matter of exclusively individual concern. Their reputation seems to be unimportant and even vain when compared with the pursuit of truth and democracy for all. On this view, it is unproblematic that, given the extremely strict liability rules developed by the Court, practically all defamation of public figures and officials goes undeterred and unredressed.

However, as I have argued elsewhere at greater length, beyond an individual dimension, the reputation of public figures and officials –as well as of organizations and institutions– also has a social dimension that the Court has overlooked. Society has a vital interest in ensuring that these individuals and organizations have the reputation they actually deserve, for this is also instrumental to our collective pursuit of truth and the preconditions of our constitutional democracies. Public officials and figures –particularly journalists– are best positioned to provide us with information we need to be well-informed. If they are wrongfully defamed, their speech will not be effective; it will not be granted the credibility it deserves. As David E. McCraw states, “[a] distrusted press is little different from a shackled press. […] It has no voice to hold governments accountable. It gets ignored.” What is more, both private and public institutions in charge of preventing governmental abuse and safeguarding the preconditions of constitutional democracy require legitimacy to perform their functions. As the Mexican example shows, the wrongful defamation of these institutions hinders their capacity to hold power accountable and defend constitutional democracy. It ultimately facilitates their capture.

Conclusion

There is no doubt that free speech has a privileged status in our constitutional order. But this does not mean it should be understood as an exclusive condition of truth and democracy. For these important social values, reputation matters too. The task of determining how best to defend it, while simultaneously ensuring robust democratic deliberation, is a difficult one. But it is not one that our legal system can abandon if we are to survive democratic erosion and creeping authoritarianism. If there is one lesson to learn from the impending capture of Mexico’s judiciary, let it be this one.