The system of separation of powers devised by Montesquieu had as its main purpose the protection of the freedoms and rights of the citizenry. The idea was that the three branches of government would strike a balance that would make abuse by any of the three impossible: the executive, the legislature, and the judiciary. Unfortunately, Mexico’s experience has not validated this notion concocted by the eighteenth-century philosopher. Instead of being the guarantors of freedoms and rights, a minority of ministers of the Supreme Court of Justice have managed to make a mockery of the essence of democracy and civility in the country.
The PRI era was characterized by the submission to the executive of the entire structure of power, both formal and informal, in the country. The hope was that the alternation of political parties in the presidency would produce a new equilibrium, for which various institutions were built, all of them conceived to prevent the abuses that, historically, the executive had extracted from the citizenry and imposed upon the entire structure of power. The first entity to be reformed was precisely the Supreme Court (1994), which was followed by the Federal Electoral Institute (1996), and then by a variety of institutions and entities dedicated to conferring predictability, certainty and stability on the conduct of the key affairs of national life, in all its ambits.
It is evident that that vision did not materialize for the entire country. Rather, after the financial crisis of 1995 and its sociopolitical consequences, the intended expansion of the “modern Mexico” towards the rest of society was abandoned, with which the country was split in two: the country of formality, exports and growing productivity; and the country of informality and extortion. The first generates growth, employment and opportunities, but in the second inhabits the majority of the population. The abandonment of this other Mexico has been patent.
López Obrador arrived to subvert the vision of the modern Mexico but, apart from entrenching himself in his idealized little world of the 1970s, he did not bring about a positive proposal for the construction of a better future. Instead, he has dedicated himself to dismantling the structures of modern Mexico, the one that functioned more or less well. With this, he is condemning the entire country to decline. To the promoters of the presidential vision, the proposals to subordinate the Supreme Court, dismantle the Federal Electoral Institute or terminate the process of energy diversification may seem visionary, but none of this is accompanied by a proactive plan, capable of giving viability or greater equity to the future. All that is being done is to return to an impossible past which, in any case, was neither attractive nor equitable.
Seen from this perspective, it is clear that the Supreme Court of Justice has not lived up to its fundamental responsibility, which is to protect the essential freedoms and rights of citizens. The Court has not only failed to attend to matters of primary importance for democracy and the integrity of the population -for which perhaps there is no better example than the so-called preventive detention without the intervention of a judge- but its performance has been extremely poor on key issues, as illustrated by the lopsided approach it took to the constitutionality of the electricity law.
In truth, the problem is not “The Court” but the strange requirement that characterizes its procedures, which mandate a two-thirds majority to determine the constitutionality of a law. This is what has given excessive power to the president and to the minority of four ministers the ability to trump the majority in transcendental decisions. In addition, the powers in the hands of the Court’s president to manage the paper flow allows him to determine which issues are dealt with and which are frozen, which favors special interests instead of advancing those of the general public.
The net result is that the Court fails in its key function of defending the citizenry. Rather, it is dedicated to protecting the government from the citizenry. One must wonder, how is it possible that the branch of government that is responsible for ensuring that neither of the other two branches abuse or limit the freedoms and rights of the population has ended up submitting itself to the executive and is dedicated to protecting the latter? In a word: who defends the citizenry?
What is evident in the behavior of several of the Court’s ministers is that their criteria are more political than legal. Although politics is, naturally, part of the context in which the members of the Court act, citizens must expect autonomy and independence in the workings of the Court, which is the only reason why their appointments are for fifteen years: to be sheltered from presidential influence.
In the world of reality, what is crucial is not the theoretical vision of a philosopher from two hundred years ago, but the elements available to citizens to protect themselves. The Court is or, rather, should be, the guarantor of these rights, so the pertinent question is when will the ministers assume their responsibility to protect citizens against abuses by the executive branch. That is to say: who do the ministers work for? Why insist on advancing an agenda that clearly contradicts the constitution and the freedoms and rights of the people?