In this latest RevDem Rule of Law podcast Oliver Garner discusses with Azul A. Aguiar Aguilar the rhetoric of President Andrés Manuel Lopez Obrador that has undermined the judiciary in Mexico, leading to recent proposals for direct elections of judges. Azul is a Professor of political science in the Department of Sociopolitical and Legal Studies at ITESO, the Jesuit University of Guadalajara.
Oliver Garner: You have recently published a working paper for the CEU Democracy Institute on the subversion of judicial legitimacy in Mexico by presidential rhetoric. Could you summarize this phenomenon for our listeners who may not be familiar with the political context in Mexico?
Azul Aguilar: I wanted to explore how the dynamics of attacks from the President on the judiciary are evolving and what are the causes, conditions, and the timing of these rhetorical attacks. I wanted to explore this because the judiciary is an important institution in presidential and constitutional democracies as it guarantees the separation of powers and checks and balances. I wanted to study this and put it into a research program because, since the arrival of our current President Andrés Manuel Lopez Obrador in 2018, we have seen variations in how the president refers to the judges and constitutional judges in the judiciary. I started my discussion in the working paper from the 1994 judicial reform. This reform is very important for us because it radically transformed the performance of the judiciary. The 1994 reform introduced judicial independence for the courts and a professional system of judges. But the most important change in this reform was that it empowered the courts through a mechanism called constitutional actions. This mechanism of judicial review allowed the courts to review the legislation of both the executive and the legislative branch in Mexico. It also allowed another mechanism, called amparo, meaning the real rights that can be contested by society because they think some institutional acts violate or breach their rights.
For instance, several pieces of legislation introduced by the president and his party have been contested either by the opposition or by society because these groups find that this new legislation is breaching the constitution, human rights, or liberal rights. Therefore, the opposition and society in several cases have gone to the Supreme Court in order to ask for the judicial revision of these authoritative acts. The Supreme Court has in many cases declared those laws that have been approved by the president and his party to be unconstitutional.
When the decisions of the court are delivered, the president and his party start to attack the court rhetorically by saying that judges are part of a privileged conservative group that are undermining democratic principles by presiding against the people. These attacks have been studied in the judicial politics literature as a first step in eroding the legitimacy of the judiciary. That is why I wanted to study these relationships. We can see this trend since the start of the Obrador government in 2018. The attacks against the court have increased not only in number but also in intensity. These attacks are acquiring a new shape. The president, for instance, recently presented a reform to transform the judiciary and the Supreme Court radically.
Thank you very much for that overview of the history and the controversial situation that Mexico now finds itself in. Why do you think that the president and the ruling party have been so critical of the judiciary? Can any of their grievances about impartiality and independence be supported by evidence? Or is the whole basis for the criticism dislike at having constraints placed on executive power?
He has been critical because judicial decisions are not favoring his political project. This is the most important aspect. The president does not attack the judiciary just because he wants to attack it without any context. An example is provided by the contested law regarding the electoral system in Mexico that the opposition feared would break our most independent electoral body that is in charge of organizing elections. They contested this decision in the Supreme Court. The Supreme Court decided in favour of the opposition. This type of situation is when you see the president and his party come out and say that the court and its judges are protecting conservative rights. In my analysis one can trace these attacks on the legitimacy of the Supreme Court. These attacks increase as the decisions of the Supreme Court go against the executive and their preferred laws.
We cannot say there is no evidence because in 2018 there was an analysis of how there is this nepotistic or clientelist network within the judiciary. Something like this works against the independence of the judiciary and also their current legitimacy before the public.
The evidence we have so far is about nepotism, but not about the judiciary lacking independence. The court, as it was reformed in 1994, acquired several mechanisms that isolated it from the political power, up to a certain point. For example, judges are nominated at different times, and justices to the Supreme Court are not nominated only by one party. We have judges who were nominated by a president of the PRI (Institutional Revolutionary Party), judges who were nominated by a PAN (National Action Party) president, and judges who were nominated by President Obrador and his party (MORENA – the National Regeneration Movement) after this election. So, we cannot say that the Supreme Court is dependent on political reasons or has political motivations to depend on only one party. Judges are very varied and come from different backgrounds. Some of them are very recognized justices and others have judicial careers. As a matter of fact, we only had for the first time recently the current president nominating a very political profile to the Supreme Court.
It is interesting to hear that there are points upon which the judiciary could be criticized. You mentioned nepotism, but probably not to the extent that has been evident in the rhetoric, and you provided some background on the 1994 reforms as a starting point. But why do you think that these dynamics of judicial subversion are occurring in Mexico? Is it a product of the tradition of electoral authoritarianism? Or do you think that other factors are more important?
These attacks and the new dynamics and relationship between the executive and the judiciary are occurring because we are beginning to experiment in Mexico for the first time in our political life with the separation of powers and checks and balances. This is something that we already had in our Constitution since our independence. But we cannot say that these de jure measures were working de facto. For the first time we have political competence, we have different parties, and these parties are really using the legal mechanisms to dispute political power. So, if they want to dispute a law introduced by the president’s party, they now have the channel and they know that the 1994 reform granted independence to the court and that the court might decide freely, independently, and according to the law, but also according to what is happening in our context. This is something that is also becoming very regular in our Supreme Court. The Supreme Court is not different to the past. It is not only deciding according to the law, but also according to different contexts—the democratic context, the human rights context, and the problems that we have with criminal organizations, etc.
President Obrador likes to govern, as he himself has said many times, with “the people”. He likes to govern with the people, and he does not like his policies to be questioned by other powers, especially powers that he claims are not democratically elected. This is also very important, and we can trace comparisons with other countries in this last part. As we see the rise of autocratic leaders or populist leaders, we begin to see some of these changes in the separation of powers and checks and balances logic that they cannot understand, and they absolutely do not share.
It is intriguing to consider that these irritations could occur as teething problems from trying to put law that was on paper in the Constitution into action. You mentioned in your response to the first question that there has been a recent reform proposed by the government for judges to be appointed through popular elections. Do you think that such a proposal could have any viability at all? Or do you think that it would completely undermine the independence of the judiciary by emphasizing the competitive logic of electoral politics over the criteria of legal expertise?
Azul Aguilar: This is an important question in the current moment because we have just received this proposal. Before there were only attacks, as discussed in my paper, but this is something that departs from the rhetorical attacks. This is no longer just talking about how the government is going to reform the judiciary because the judiciary is a conservative group. They recently proposed a reform in the chamber of deputies to introduce popular election, not only of the Supreme Court justices, but also for all judges, including district court judges, circuit court judges electoral judges, but also those judges that sit in the judicial council –the governance body that organizes the internal structure of the judiciary.
Let’s tackle the first question. This reform cannot be approved in this term because the president does not have the majority to do so. He will need a constitutional reform. However, his party is currently one of the most popular parties in Mexico and we are having an election that is due this year in June. It is highly probable that his appointee, the candidate of MORENA, will win the election.
The bottom line is that the government does not have the power now, but they might have it after the next election. We hope that they do not.
The elections are going be very competitive, especially in the legislative branch. We want a divided government so that this type of proposal cannot go through. The president’s proposal is a complete regression in judicial matters. It will absolutely destroy two things that have been constructed in the past 30 years since the 1994 reform, judicial independence and the professionalization of the judicial career. Currently, we have decisions like the court deciding against the preferences of the political elite because judges are independent, they cannot be dismissed, and they have a secure tenure. They can be there for 15 years and cannot be reappointed. They can only be dismissed if they breach the Constitution. This would change with appointment by popular election.
Now, I want to come back to professionalization. This is also important because before the 1994 reforms the judiciary was constructed from people who were friends of someone. Currently, judges and magistrates are appointed as the result of a judicial career. Nepotism in the judiciary is especially prevalent in the lower echelon of the judiciary, but not in those two positions that are the most important in the judicial career. Judges have been subjected to different exams and merit systems that allows us to have a professional judiciary. This is something that would disappear with the popular election of judges. So, the reform would be to elect these justices, Supreme Court judges, and electoral judges by vote. But how are you going to do that? First of all, judges would no longer have a tenure of 15 years, but only six years in that position. Judicial elections would happen at the same time as the national elections. This is another problem because they are going to be linked to the parties and the political competition.
But the worst part is that this reform proposes that candidates for judges and justices, especially for justices, are going to be proposed by the executive, the legislature, and the Supreme Court. These three institutions are going to propose 10 candidates each that can run in the elections and those who have the majority of votes are going to sit in the Supreme Court. This process politicizes the judiciary a lot. In light of the Bolivian experience, where judges are already selected by popular election, we can see the effects that this type of system has on democracy but also in the political system.
I would also like to talk about the nomination process that we have now because we have problems, as we can see in other countries. In Mexico, the justices are selected by a two-thirds majority of the Senate on proposal of the executive. This politicizes the process a lot and concentrates the decision in one actor. For instance, if the president’s party has the majority in the Senate, as has happened in many cases, for instance in the case of Donald Trump in the US he could nominate several judges and change the balance of power in the Supreme Court. That also happened here in Mexico, it happens in Brazil, Latin American and Central European countries. It is a problem because you are also politicizing this body that should be impartial in deciding between two political poles.
We are now thinking that, yes, we need to reform the Supreme Court nomination process but not by electing judges. Instead, it would be better if we could include different actors in the nomination process, not only the Senate and the executive, but also a body such as the Judicial Council that can control who is nominated to occupy a position in the Supreme Court. Currently in Mexico, the president decides who is going to be sent for approval to the Senate and the Senate has to decide between three candidates in which no profile is a good profile. And if there is a second rejection in the Senate, then the president can decide by himself who sits in the court. So that is what happened with the last nomination – the president decided because the Senate rejected the three people who were sent to be selected.
It is fascinating to consider, especially for RevDem, the problems that can arise from an overabundance of democracy in inappropriate areas. So, we will definitely look to follow the results of the Mexican election very closely. For our final question, I thought I would focus on the issues concerning Central Europe that you mentioned in your final answer. We have seen in Hungary and particularly Poland that there have also been processes of democratic erosion involving rhetorical attacks on the judiciary and indeed also reorganization of the judiciary and the system of appointments. Do you think there is any evidence of exchange and influence between Latin America and Central Europe in these matters? And do you think that Poland under Donald Tusk could provide a model for the reversal of erosion in Mexico?
I am not sure that there is an exchange between those regions. But we can clearly identify patterns for comparison between them.
We have also both elected democratically populists with autocratic tendencies. It also follows that we are facing several attacks on the judiciary. Especially the cases of Hungary and Poland are very significant for the Latin American region because they also undermine the independence of the judiciary. Judicial independence was totally subverted under Orbán and Kaczyński. This served as a playbook for other autocrats in our region such as Bukele [the president of El Salvador] and Bolsonaro. Bukele is the most important case because he learned very quickly, as did Orbán and Kaczyński, what to do with the court once they got the majority in the legislature. This is something that Bukele did well along the same lines as these leaders in Hungary and Poland.
We share these points of comparison. It can help us to illuminate what is coming and to illuminate how we can reverse it. The second question is a little bit more complicated to respond to because it will take place in the future. But let’s think about something that is very clear so far.
So, it is not easy when a democrat back comes into the executive and wants to reintroduce judicial independence, professionalization, and guarantees of impartiality in the judiciary because it has to face not only the political elite that is still there. Tusk and other democrats are competing, but they are not winning with a huge majority. Bolsonaro lost the presidency with a very narrow margin as did Donald Trump. Political elites are not going to be completely committed, or even worse judicial elites who were nominated previously by autocratic leaders might defend against advances in granting power and independence to the courts and the justice system again.
I just want to recall what is happening currently in Guatemala. This is an important example because they have elected a new president who is very progressive and is different from the past political elite who undermined the judiciary and other institutions in the justice system. Now he wants to introduce reform but does not have a majority, but also, he is facing prosecution by institutions that were previously independent, but were subverted, now are filled only with autocratic profiles. So, it is very important to have in mind all such problems that might arise, for example, in wanting to reintroduce guarantees of political independence for the judiciary in Poland.
This transcript has been edited for length and clarity.
In collaboration with Sushav Niraula.
