25 October 2023

The Mexican Standoff

AMLO vs. the Judiciary

In a historical march, tens of thousands of judicial staff, lawyers, and judges – including at least one justice of the Supreme Court – took to the streets of Mexico City on 22 October 2023. Chanting slogans such as ‘¡El Poder Judicial de la Federación no se toca!1) and ‘¡Somos los garantes de la Constitución!2) protesters rallied against the Mexican government’s plans to slash the federal judiciary’s (Poder Judicial de la Federación, PJF) funding. In this contribution, we analyse what this dispute is all about and explain why the government’s plans jeopardise the independence of the Mexican judiciary. In particular, we argue that the recent, seemingly innocent financial measures come at the cusp of an alarming authoritarian turn. Finally, we offer some tentative thoughts on what the endgame in this quickly escalating dispute might look like.

Rights, not Privileges

At the heart of the current controversy lies a complex compensation arrangement. Employees of the PJF – including judges as well as administrative staff – receive regular monthly salaries which are guaranteed by the Constitution. Mandatory labour benefits such as health insurance and pension payments, however, are funnelled through six separate trust funds (fideicomisos) managed by the PJF itself. Additional trusts provide supplementary allowances that are intended to increase judicial independence and reduce the risk of corruption, among them retirement top-ups and special medical services. As a whole, the system ensures the impartial functioning of the judiciary by shielding judicial remuneration from outside interference.

The governing coalition’s intentions to dismantle this system came to light on 6 September, when Parliamentary Group Coordinator Ignacio Mier Velazco (Movimiento Regeneración Nacional) tabled a bill to reform the Judiciary Law (Ley Orgánica del Poder Judicial de la Federación). The proposed reform came on the heels of the 2024 budget preparations and foresaw the elimination of all trusts that are not explicitly enshrined in the Judiciary Law – which applies to 13 of the total of 14 trusts, jointly covering more than 15 million Mexican Pesos. The only remaining trust, the 6 million Mexican Pesos Fondo de Apoyo a la Administración de Justicia, merely funds basic expenses related to the administration of justice, such as the acquisition and maintenance of buildings.

The proposal was touted as a redistributive corrective to curb the supposed privileges of a ‘corrupt’ judicial elite by President Andrés Manuel López Obrador (commonly known by his acronym, AMLO). PJF employees, members of opposition parties, and civil society organisations strongly countered these accusations and pointed out that many trusts directly affect the fundamental labour rights of thousands of workers. Moreover, as the president of the Supreme Court, Justice Piña Hernández, contended, the planned reforms would indirectly threaten the rights of all Mexican citizens who rely on an impartial and effective judiciary.

Despite the backlash, the lower chamber of parliament (Cámara de Diputados) approved the bill on 18 October. One day later, more than 40,000 employees of the PJF entered into an unprecedented, nationwide strike that saw most courthouses remain closed and judges only attending to the most urgent matters. On 23 October, members of the opposition Partido Acción Nacional (PAN) and Partido Revolucionario Institucional (PRI) invited Justice Piña Hernández to the Senate session the next day in a last-minute attempt at mediation. Pending a formal invitation from the Senate Political Coordination Board (Junta de Coordinación Política del Senado), the dialogue failed to materialise, and in the late hours of 24 October, the upper chamber of parliament (Senado) passed the law into effect without amendments.

Death by a Thousand Cuts

When AMLO assumed office in 2018, there were justified hopes that his government would respect and strengthen the system of checks and balances. Among the ‘100 promises’ submitted at the beginning of his mandate were commitments to ensure ‘an authentic rule of law’ as well as to maintain ‘respectful relationships’ with the legislative and judicial branches. Yet, mere weeks later, the government passed a law mandating a significant reduction in the salaries of federal judges. While the provision was eventually struck down by the Supreme Court, the clash illustrated that the judiciary was unwilling to bow to the governing coalition’s flagship reform programme known as the ‘Fourth Transformation’ (La Cuarta Transformación, after the Mexican independence, the secularisation of Mexico under Benito Juárez, and the Mexican Revolution).

To keep the judiciary in check, the government initially pursued a strategy of co-optation. Between 2018 and 2021, AMLO managed to nominate four of the eleven justices (ministros/-as) sitting on Mexico’s powerful Supreme Court (Suprema Corte de Justicia de la Nación). In 2021, he further attempted to modify the Court’s rules in order to extend the tenure of sitting Court President Arturo Zaldívar Lelo de Larrea, who had shown deference to the government on various occasions. However, the judicial institutions proved remarkably resistant. Even some AMLO-nominated ministros/-as increasingly began to rule against the government’s projects, and the so-called Ley Zaldívar was invalidated by the Court as a flagrant violation of the Constitution.

By late 2021, the President noticed that the co-optation strategy had failed. In a telling statement, he confessed to having nominated the wrong ministros/-as, whom he accused of being more committed to ‘judicial mechanisms’ than to his political project. Moreover, having lost its congressional supermajority in the 2021 midterm elections, the government could no longer change the Constitution to rein in the PJF. As such, co-optation increasingly gave way to defamation and open contestation. Unfavourable rulings were met with public fury by the administration. AMLO did not shy away from accusing judges of acting ‘against the people’ and being ‘eclipsed by money.’

In June 2023, the Supreme Court invalidated a new electoral law that sought to curb the powers of the National Electoral Institute, another gatekeeping institution that has suffered repeated attacks on its independence. Four months later, the government seems to have found a way to discipline the rebellious Court – by eliminating the fideicomisos. Some commentators suggest that there might be another, more practical reason for AMLO to tap into the judiciary’s trusts: He simply needs the money to fund a range of ambitious infrastructure projects – such as the infamous Tren Maya railway in the Yucatán peninsula – during the last year of his presidency.

Can the Judicial Empire Strike Back?

In How Democracies Die, Steven Levitzky and Daniel Ziblatt argue that the weakening of gatekeeping institutions – such as the judiciary – is a warning sign of pending democratic decline. Indeed, the Mexican government seems to be taking a page from the authoritarian rule book pioneered in Poland and other countries. AMLO’s statements in the wake of the recent protests and strikes have added insult to injury and further escalated the situation. He branded employees of the PJF as ‘lazy’ and ‘corrupt’, opined that no one would notice their strike, and called protesters an ‘embarrassment’ and ‘hauled’ (‘acarreados). Meanwhile, the PJF is far from giving up its resistance. So, what is the potential endgame in this Mexican standoff?

In the short term, the law is likely to be challenged by the upper or lower house opposition through an action of unconstitutionality (acción de inconstitucionalidad), which requires the support of 33% of either house’s members. This action could base itself on flaws in the legislative procedure, as the bill had been assigned to the  Budget Committee rather than the institutionally competent Justice Committee. Moreover, the Court could take issue with the law on substantive grounds, for instance under the constitutional provisions dealing with the PJF’s budgeting powers. While the case is in the docks, the law could even be temporarily suspended to halt the dissolution of the fideicomisos. For the law to be declared unconstitutional, however, a minimum of 8 out of 11 Justices would need to side with the complainants.

In an effort to undermine the legitimacy of this potential legal avenue, some critics have already raised concerns about a perceived conflict of interest. They argue that having the Supreme Court adjudicate the action would make them ‘judge in their own case’ (juez y parte). However, this claim misses that the elimination of trusts first and foremost impacts administrative PJF employees’ labour rights rather than the benefits enjoyed by Supreme Court justices. Beyond seeking a resolution through the national courts, there is also the option of submitting a petition to the Inter-American Commission on Human Rights.

In the mid to long term, however, there can only be a political solution to this deep institutional crisis. Mexico will elect a new president along with a new legislature on 2 June 2024. AMLO is barred from re-running, but his political protigée, presidential candidate and incumbent mayor of  Mexico City Claudia Sheinbaum has gleefully joined the judiciary-bashing. Sheinbaum even pitched the idea of electing judges by popular vote in case of her coalition winning a congressional supermajority that would allow for constitutional amendments. Meanwhile, the opposition candidate Xóchitl Gálvez publicly defended the PJF and called the government’s plans an act of ‘vengeance’. When over 90 million citizens are called to the polls in eight months, the very future of judicial independence in Mexico will be on the ballot.

References

References
1 ‘Don’t touch the federal judiciary!’
2 ‘We are the guarantors of the Constitution!’

SUGGESTED CITATION  Bertram, Daniel; Higuera Sánchez, Laura: The Mexican Standoff: AMLO vs. the Judiciary, VerfBlog, 2023/10/25, https://verfassungsblog.de/the-mexican-standoff/, DOI: 10.59704/c243517914086e82.

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