Luis Rubio
In July of 1914, one month before the outbreak of World War I, none of the protagonists in what would be a bloody conflagration had any idea of what was to come or, as Christopher Clark writes, they stumbled along like sleepwalkers toward the precipice. The present moment in Mexico entertains a great similarity to the description: the new government is absolutely certain of its vision, which impedes it from assessing what is happening around it whether as a threat, or as the opportunity it could be.
The judicial reform generates antibodies on both sides of the discussion: for those who support it, the new mantra is the universal solution for the country’s problems of justice; for those who vilify it, the new law constitutes a danger to the most basic values of democracy and economic stability. In the earthly world, as diverse interviewees illustrated within the halls of the legislative chambers when the vote for the reform was conducted, the majority of the representatives and senators were not appraised of the content of what they were voting for, nor did they consider whether the bill comprised a viable solution for the problem set forth. Most of the legislators being interviewed did not even know how many articles there are in the Mexican Constitution. The point here is that the judicial reform disrupts the whole system of government, but those responsible for approving it never gave serious thought to the reform’s relevance or implications.
Last week the Supreme Court decided to advance the request to revise the process of approval of the judicial reform and the separation of powers. I am not an attorney, so I will not seek to litigate the affair, but the reaction of Morena Party leaders as well as of President Scheinbaum suggest a full rejection of any action, or interpretation, which does not strictly adhere to the official orthodoxy. And this before having the least notion of what the content could be re what the Supreme Court produces. The obligatory question is whether this is a constructive manner of advancing development or, thinking in terms of the anecdote of WWI, whether there is no way of avoiding a crisis that would place in question the objectives of the government itself, and the country’s future
Some individuals in the administration recognize the inborn risks of the implementation of the reform and its potential consequences both for justice itself (allegedly the objective here) as well as for economic development. However, were one to observe the broader context, the action of the Court opens an enormous opportunity for President Sheinbaum. A more receptive stance could achieve, in one fell swoop, consolidating her government, opening the door to private investment, above all foreign, and laying the foundations of the Rule of Law, the absence of which the country has experienced almost throughout its entire existence. In a word, changing the optics could perhaps render possible the takeoff of the fledgling government.
The judicial reform’s rationale is strictly political. While it is evident that the country lacks a system of justice that effectively attends to and resolves the problems and disputes involving the complaints of the population’s majority, the reform does not focus on any of that. To start with, the overwhelming majority of the issues that the population is concerned with or complain about refer to the states, the latter different from those of the federal jurisdiction, that is the main objective of the reform. Also, it is evident to an even greater extent that the reform would never have been promoted had Minister Zaldívar remained on the Court, thus relinquishing that halo of legitimacy and power that Morena members attribute to the bill.
More to the point, no government in the world likes to have its power limited. Therefore, presidents resort to decrees (to avoid approaching the Legislature) or they nominate justices, magistrates or ministers whom they consider germane to their project.
The reason for the separation of powers is, precisely, that of conferring certainty and predictability on the citizenry in general and on the diverse actors and social agents in particular. The stronger the Executive, ergo the objective of the judicial reform, the lesser the economic development and the greater the uncertainty. That is, if the government attempts to be successful in its projects, it must accept the existence of effective and credible counterweights. The dilemma is real.
In the United States, the Supreme Court was a weak counterweight at the start and, as happens everywhere, the government strove to maintain it thus, beginning with the attempt, in 1800, of an administration to saturate the Judiciary with sympathetic judges, which the following government sought to revert, overturning the respective law. In the constitutional controversy that ensued, Marbury v Madison, the Supreme Court assumed the faculties of constitutional revision, which permitted it to resolve the specific dispute between the incoming and outgoing administrations, but additionally to establish the Court as an arbiter of controversies between the other public branches of government.
The point is that President Sheinbaum cradles in her hands the opportunity to transform the country much beyond what she probably imagined. On accepting the possibility of modifying or, indeed, abolishing the reform, the country would acquire the foundation of a true separation of powers, and she would consolidate her platform to effectively drive the inclusive and equitable development of the country.
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