—Francisca Pou Giménez, ITAM, Mexico City
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]
As contributions to this blog regularly attest, we professors spend a good part of our time crafting concepts, suggesting labels, producing classifications, and identifying and naming trends. From this perspective, political and legal developments in Mexico have often posed a challenge. Twenty years ago, transition studies already had difficulties in classifying the regime the country was gradually abandoning. Looking back, at the beginning of the 1990s, a scholar famously compared the PRI-led system to a platypus, the semiaquatic egg-laying mammal with a beaver tail and a duck mouth.[1] It wasn’t democratic, but neither dictatorial nor totalitarian; it was authoritarian, yet of a civil and not of a military kind; it suffocated political pluralism, yet allowed for a degree of political contestation within the hegemonic party; it was elitist, but also in some way inclusive of peasants, workers and business people.
More than two decades after, Mexico is generally named a democracy, but it is still one very difficult to apprehend and adjectivize. At the constitutional level, its 101-year old text —amended more than 700 times—is very heterogeneous: it contains most of the institutions distinctive of contemporary Latin American constitutions, yet also remnants of time past, and provisions that do not pass rights-based muster.[2] As far as performance is concerned, things couldn’t look grimmer, with more than 150,000 violent deaths and 25,000 disappeared people in ten years,[3] a Gini coefficient above 0.5,[4] 53 million people in poverty,[5] and political and social dynamics swamped by corruption and impunity. Yet things go on. The country is still the eleventh-largest economy in the world;[6] tourism achieved last year a record figure of 35 million visitors;[7] people prepare for the July 2018 election; and judges and public officials get up in the morning and go about their jobs. Mexico is today a country in which everything is seemingly susceptible of being “normalized.”
Here, I wish to underline two recent, worrying developments whose “normalization” we should fiercely resist. The first one, gone almost unnoticed abroad, was the passing and subsequent validation by the Supreme Court, by mid-2017, of a statutory reform that altered the terms of the Justices of the Federal Electoral Court after they had already been sworn in their offices. The second one is the approval, in December 2017—in a session that Senators closed with an applause—of the Interior Security Act, a package of provisions that transform the relations between civil and military authorities, sanction the routine presence of the Army in the streets, and provide the Executive with powers that chill protest and condone privacy violations.
The creation of a credible electoral authority was the bedrock of the Mexican transition. In a country that had seen for decades how elections were formally celebrated to no avail, the establishment of a well-funded electoral agency responsible for organizing elections, and a tier of specialized Electoral Courts, was rightly deemed paramount. In 2007, an amendment to Article 99 of the Constitution provided that, to better guarantee functional continuity, future appointments of Electoral Justices and Commissioners were to be done “in a staggered way, in the terms provided for by statutes.” The Federal Judiciary Act was accordingly amended in 2008, and its Transitory Fourth Article laid out the dates and different terms of service of the future Justices. Following this system, in October 20, 2016, the Senate appointed seven Electoral Justices, who were sworn in their offices that same day and were due to start functions on November 4. Yet on November 3, after a speedy procedure launched only five days after the swearing-in, the Transitory Fourth Article was amended to enlarge the terms of four Justices: the two appointed until 2019 would stay until 2023, and the two appointed until 2022 would stay until 2024 (the remaining three would stay, as planned, from 2016 to 2025). The Supreme Court reviewed the constitutionality of the reform in an abstract challenge but, in a 6-5 ruling, it found no flaws. The Justices in the majority underscored that the Constitution “delegated” the decision on the Justices’ terms of service to ordinary law, and discerned no attack to judicial independence since the amendment enlarged, rather than shortened, the Justices’ terms.[8]
The Interior Security Act, for its part, is the last move in a chain that started when former President Calderón decided in 2006 to launch a “War on Drugs” which has unleashed unprecedented degrees of public and private violence. The statute includes open-ended definitions of “interior security threats”, “interior security actions” and “interior security intelligence,” classifies all related information, bans administrative courts from reviewing interior security actions, makes respect for social demonstration conditional on its being “peaceful, according to the Constitution,” and gives the Army jurisdiction to perform ordinary police functions, in utter disregard of the pre-established territorial and horizontal separation of powers—among other things. It is a blatant bypassing of the regulation of exception powers in Article 29 of the Constitution, and perpetuates and certifies a state policy with incalculable costs in terms of human rights violations.
The Mexican Supreme Court is due to decide soon on the Act, which has been challenged by the National Commission of Human Rights and several Municipalities. But the Mexican Supreme Court is, unfortunately, the same Court that, in the electoral case, was incapable of enforcing the substance of a structural constitutional provision, in collapsing the difference between legislative development and legislative emptying of a core institutional guarantee, and in failing to interpret a specific rule in light of the principle it is bound to serve (judicial independence). It even lacked the political instinct of opposing the tampering with judicial tenure by the political branches in a case that concerned a fellow high court —if only to set a precedent that might help defend its own position in the future.
As Owen Fiss has superbly shown, in the decade that followed President Bush’s declaration of the “War on Terror”, the concurrent action of the three branches —crucially including several Supreme Court minimalist rulings— caused a permanent erosion of constitutional guarantees in the United States; it transformed what were once unconstitutional aberrations into permanent features, shaping a new understanding of the acceptable and inaugurating a disgraceful “new normal.”[9] Mexico, its North American neighbor of the Global South, currently receives the sympathies of many around the world, being a prominent victim of the anti-immigration and anti-free trade policies of a US President who struggles to push the frontiers of the “new normal” further and deeper into new areas. Yet when it comes to developments that assault the waterline of the rule of law, we should avoid double standards and duly blame all who deserve it.
Suggested citation: Francisca Pou Giménez, Fighting the “New Normal,” North and South, Int’l J. Const. L. Blog, Feb. 14, 2018, at: http://www.iconnectblog.com/2018/02/fighting-the-new-normal-north-and-south-i-connect-column/
[1] Jesús Silva-Herzog, “Memorias del ornitorrinco,” Nexos 17 (194) (1994); El antiguo régimen y la transición (Planeta- Joaquín Mortiz, 1999).
[2] For instance, the authorization of Prosecutorial detention for up to 80 days without formal charges in certain situations in Article 16, or the deprivation of political rights to (presumptively innocent) individuals facing a judicial process in Article 38.
[3] Inter-American Commission of Human Rights, Situation of Human Rights in Mexico (2015), 12 (http://www.oas.org/en/iachr/reports/pdfs/mexico2016-en.pdf)
[4] Economic Commission for Latin America and the Caribbean (ECLAC/CEPAL), Social Panorama of Latin America 2017, 44, 42 (https://www.cepal.org/en/publications/42717-social-panorama-latin-america-2017) (reporting, for Mexico, that the richer quintile concentrates 48% of the total income).
[5] See https://www.coneval.org.mx/Medicion/MP/Documents/Pobreza_16/Pobreza_2016_CONEVAL.pdf
[6] See http://www.oecd.org/eco/surveys/Mexico-2017-OECD-economic-survey-overview.pdf
[7] See http://www.datatur.sectur.gob.mx/SitePages/RankingOMT.aspx
[8] Actions of unconstitutionality 99/2016 and 104/2016, decided June 27, 2017. See the Justices’ deliberations and voting in https://www.scjn.gob.mx/multimedia/versiones-taquigraficas?fecha=1&field_vsts_instancia_target_id_1=15&page=6 (June 22, 3-48; June 26, 23-47; June 27, 3-19) (the text of the final ruling is not available yet).
[9] Owen Fiss, A War like no Other: The Constitution in a Time of Terror (The New Press, 2015), 123-124.
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