The function of the umpire in constitutional matters is that of breaking the ties among the other branches of government. In recent years, with the legislature in control of the executive, the sole guarantee of political and institutional stability has resided on the Supreme Court of Justice; but what happens when the umpire renounces its constitutional responsibility and its president publicly subordinates himself before the President of the nation?
The 1994 reform of the Supreme Court was conceived for a moment such as this. The objective was to confer certainty on the process of political change that began to take shape with the modernization of the structure of the judiciary. Very much in the style of the times, that reform was two steps forward and one step back: for example, there is no Supreme Court in the democratic world that requires more than a simple majority for its decisions; in Mexico eight of the eleven votes are required. In the same manner, an enormous power of control was conferred to the Court’s president. These original sins reveal, once again, the lack of vision of Mexican presidents and their perennial commitment to the status quo, in this case one neither very democratic nor commendable.
The anomalies with which the Court came into being are those that have created the conundrum in which Mexico finds itself at the present time because it permitted President López Obrador to take control of the institution on forcing the exit of a minister, the naming of two that came up for nomination, and the subordinating of the President of the Court. In the blink of an eye, the President ended up in control of the umpire and, through the Court’s president, froze all the vital issues up for Court review that undermined and threatened the most elemental rights of the citizenry. When the umpire abdicates its role, the country moves into very slippery terrain.
The list of pending issues before the Court grows by the minute; some of those pending points-of-issue speak to the most elementary attributes for the life of a nation, such as the very freedom of the people, property rights and the permanence of the reforms adopted over the past decades. These issues matter and affect the entire citizenry because they refer to the essence of the relationship between the society and the government, between the federal government and the states, and, above all, to the counterweight mechanisms that every democratic and civilized society needs to function. A society deprived of those mechanisms or when those counterweights are called into question and no safeguards remain capable of protecting them, ceases to be able to conceive of itself as civilized and democratic. Mexico has not yet crossed that threshold, but the subordination of the Court, especially of its president, to the federal executive, advances in that direction.
The retired Minister of the Court, José Ramón Cossío, argues that “the central function of constitutional justice is precisely to contain those attempts to it being seized. Constitutional justice requires justices willing to sustain the plaza, which in this case is the Constitution.” When those justices allow the subordination of the last constitutional fort to the executive, they not only convert justice into mere mockery, but they also attempt against the stability of the country.
The electoral result of the recent midterms partially reduces the gravity of the predicament in which the Court has placed the citizenry. The loss of the qualified majority by the Morena party and its allies, changes, at least in part, the political panorama. However, it does not solve the damage which has already been inflicted on the issues at the doorstep of the Court, but which the Minister President of the Court jealously guards under lock and key, such as preventive imprisonment and domain extinction without the acknowledgement of a judge, to cite two that are especially abominable and ominous.
The question is what comes next. One possibility, that preferred by Mexican politicians, now spurred on by the president’s decision to “pop the cork” on the presidential-succession process by “unmasking” the potential candidates of Morena, is that of keeping low and doing as little as possible for the remainder of the current presidential term. Given the pressure to which the members of the Supreme Court of Justice are submitted, this would appear to be an attractive option as individuals, particularly its president, but it would imply absolute irresponsibility with respect to the latter’s constitutional obligations.
Another possibility would be that proposed by Denis Jeambar and Yves Roucaute in their famous book Eloge de la Trahison: betraying whatever understanding the Court’s president might have with López Obrador. It is time for the president of the Court to recognize the historical moment: “not to commit treason is to perish: it is to fail to recognize time, the spasms of society, the mutations of history. Treason, the expression of pragmatism of the highest order, is lodged in the center of our modern republican mechanisms… Treason is the political expression –it is the framework for the norms rendered by democracy- of the flexibility, the adaptability, the anti-dogmatism; its objective is to maintain the foundations of society, while that of criminal cowardice is to disaggregate them.”
The least Mexicans deserve is for the Court to assume the maxim of José María Morelos, one of the nation’s forefathers: “That anyone who complains with justice will have a court that listens to him, shelters him, and defends him against arbitrariness.”