Karl Popper, the great scholar of democracy and open societies, wondered once: “What has to be done if ever the people vote to establish a dictatorship?” According to Popper, most democracies include clauses in their laws to prevent that from happening, such as requiring qualified majorities in Congress. Legally or not, the fact is that Mexico’s governing party (Morena) -and therefore President Andrés Manuel López Obrador (AMLO)- has a qualified majority in the Lower House of Congress and is not far from achieving the same feat in the Senate. In a system of separation of powers, the Mexican Supreme Court was the only branch capable of preventing the consolidation of a dictatorship. Unfortunately, the court fell short.
Each branch of government within a democracy has a specific origin, a structure, and some responsibilities. While the executive and the legislative branches are elected by the people and need to stay close to what citizens think, the Supreme Court was designed to keep some distance from day-to-day things. Using the long-term perspective presented by the constitutional framework, the court examines the proposals, decisions and laws that are the subject of the other two branches. The court’s function is not to be popular but to keep a balance and break the ties between the two other branches of government.
When a branch of government endowed with such powers abdicates its responsibilities it fails society and opens the door to other abuses by the other branches. In the case of Mexico where the executive controls the legislature and routinely subordinates it to its interests and preferences, the Supreme Court was the only stronghold of constitutional protection left to citizens. With its decision last week to endorse López Obrador’s idea of a referendum to prosecute five former Mexican Presidents, the Supreme Court gave in, bowed to the will of the President, and lost all credibility. With a subservient Supreme Court now transformed into a mere clearinghouse of the President’s wishes, there is no longer need for López Obrador to push to create a separate Constitutional Court as he initially had suggested.
Instead of evaluating the constitutionality of the proposed referendum to prosecute the former Presidents, the Supreme Court chose to elucidate “the feelings of the people” (in the words of President López Obrador himself). There are only two possible interpretations of the Supreme Court’s decision both of which are bad. The first interpretation is that the majority of the Court’s justices believe that politicizing justice is legally valid. A second interpretation is that the Court chose to avoid a conflict with President López Obrador by caving to his wishes. Both interpretations are bad news for Mexico’s democracy and even worse for the rule of law.
The referendum’s proposed question has been widely debated, so I will only highlight three points. First, the referendum is not a legal issue but a political one. President López Obrador wants to be on the ballot in the 2021 midterm election to boost his party’s chances of retaining the majority in Mexico’s Lower House of Congress. The Supreme Court has now given López Obrador what he was not able to do when he unsuccessfully proposed the idea of holding a recall referendum. It is clear to me that the last thing that President López Obrador cares about is to indict his five predecessors even when he would undoubtedly like to see one or two in jail for strictly personal reasons. Second, there is enormous resentment against various former Presidents, partly fueled by López Obrador himself but also in large part by Mexico’s 1994-95 financial crisis and the 2006 Presidential election. Instead of changing reality and solving those grievances through better public policies to improve the quality of life of citizens, López Obrador has opted for a strategy of confrontation and distraction. The referendum to prosecute the five former Mexican Presidents fits this purpose like a glove. Finally, the Supreme Court’s ruling opens the door to any matter be subject of a referendum. It will surely occur to many that new referendums could be used to deal with things like the poor performance of the López Obrador Administration, the current government’s corruption, water rights in Chihuahua state or the management of the Covid-19 pandemic.
One of the peculiarities of power in Mexico is its excess. Mexican Presidents (and especially the current one) enjoy an almost unlimited power, free from checks and balances, which makes them believe that they are omnipotent. To the extent that their actions foster and nurture that sense of absolute power, Presidents begin to believe that their reality is permanent, indisputable, and legitimate. Their advisers and officials become complicit (conscious or not). The mere fact that President López Obrador believes that there is no corruption in his government is an early sign of this fact.
History, however, teaches us another lesson. Only when they are no longer in government (and usually in a bad way), Mexican Presidents begin to realize the mistakes, costs, and deficiencies that happened during his term in office. That is the time when the attacks and demands against them begin: right when they are no longer in control of those government tools that can vindicate them. It never fails.
There are two big losers of last week’s Supreme Court’s decision. First and foremost, Mexican citizens who (whether they recognize it or not) always benefit from the rule of law, now further weakened. The other big loser is, paradoxically, the President himself, whose acts can now be inexorably subject of a referendum.