Rule of law: concerns for constitutional autonomy after Mexico’s historic election

Ann DeslandesTuesday 18 June 2024

Image: Palacio Nacional, government building at night, Mexico City. Alejandro/AdobeStock.com

Mexico’s elections in early June saw the country elect its first female president – Claudia Sheinbaum – as ruling party Morena secured a landslide victory. Sheinbaum has promised to take the ‘next step’ in the ‘Fourth Transformation’ – a social, political and economic project begun by outgoing President Andrés Manuel López Obrador, known as AMLO. The magnitude of Morena’s win has given rise to concerns for the rule of law in the country, however.

Morena took hundreds of Congressional seats as well as state and local governorships. The party’s share of the vote during the one-month overlap between the current and forthcoming congresses will grant the party a supermajority in the lower house and close to a two-thirds majority in the Senate. This may provide AMLO with the opportunity to implement his ‘Plan C’ constitutional reforms – a set of proposals that serve as a successor to his beleaguered ‘Plan B’ package, which was overturned by the Mexican Supreme Court in 2023.

The one-month overlap is the result of a discrepancy between congressional and presidential timelines, itself probably an unanticipated quirk of previous electoral reform towards the separation of powers, says Andrés Besserer, a former officer of Mexico’s Instituto Nacional Electoral (INE, the National Electoral Institute) – which organises federal elections – and a PhD candidate in political science at City University in New York.

Formally put forward in February, Plan C, much like Plan B, proposes to considerably reduce the capacities and oversight of the INE, as well as restructure the court system, including by introducing the popular election of judges. AMLO has previously expressed concern about the costs to the Mexican people of institutions such as the INE and has denied that his reforms threaten democracy.

The big concern is that the established formula for electing judges will not be fair and balanced

Daniel del Rio
Member, IBA Latin American Regional Forum Advisory Board

Still, Plan C has spooked the markets, leading to a drop in the value of the peso. According to Bloomberg’s JP Spinetto, traders are worried that, with the outgoing President’s coalition ‘having secured in effect a congressional supermajority, it will be able to change the constitution as it pleases. That could make Mexico’s legal framework much more arbitrary, hence the nervousness of investors.’ Besserer says the extremely short length of the one-month overlap period is where the crux of the concern lies. ‘It could be too short a time in which to lay the foundations needed for sustainable reform’, he explains.

Sheinbaum’s office didn’t reply to Global Insight’s request for comment, but the President-elect and AMLO announced in mid-June that the government would consult with the legal profession about the judicial reforms, as part of a ‘broad consultation’ on all of Plan C. The outgoing and incoming presidents agreed that ‘the bar associations, law schools, ministers, magistrates, and judicial branch workers should be invited to participate in a broad discussion and become familiar with the reform's proposals.’ More generally, Sheinbaum has highlighted the need for an open dialogue and the importance of achieving a consensus before any reforms take place.

José Visoso, Scholarship Officer on the IBA Latin American Regional Forum and a partner at Galicia Abogados in Mexico City, says that ‘so far and during her term as Mayor of Mexico City, Mrs Sheinbaum has been respectful of the rule of law. There are still many aspects of the potential judicial reform to be defined and therefore it is still too early to tell’ the impact that Plan C might have.

While the detail remains unclear, Daniel del Rio, a Member of the IBA Latin American Regional Forum Advisory Board and a partner at SMPS Legal in Mexico City, explains why the legal profession should stay abreast of what happens to President AMLO’s proposals. ‘The main concern is that the judicial reform would establish a process for Supreme Court judges to be appointed, and that this could infringe upon the independence of the judiciary. So the big concern is that the established formula for electing judges will not be fair and balanced’, he says.

Mexico is home to many ‘anti-rights groups with a lot of economic and political power’, says Melissa Ayala, a Mexican constitutional lawyer specialising in human rights and gender. If judges with such views are elected, the resulting jurisprudence could ‘turn back almost ten years of litigation’ for gender equality, for example in terms of reproductive rights, she believes.

Meanwhile, Ramón I Centeno, a sociology professor at the University of Sonora who researches and teaches on Mexico's political system, says that, in effect, the proposed reforms to the electoral commission and judiciary would make Mexico's system of government ‘less democratic’.

Electoral reform in the late 1990s saw the beginning of Mexico's transition to democracy, he explains. As the federal electoral institute was originally an office within the interior ministry, the ‘separation of the electoral institute that organises and counts the votes from the Presidency of the Republic’ and its continuing autonomy were critical to democratisation, says Centeno.

The Plan C reforms would ‘subtract’ from the democratic autonomy of the INE, which has already ‘been subjected to severe budget cuts that have taken away its ability to act’, he adds. The result is a ‘less solid institution than before.’

Ayala says that constitutional autonomy such as that of the INE is important to defend. She highlights that such autonomy is also a feature of several other institutions in Mexico, including the country’s central bank, its federal competition authority and the federal transparency/freedom of information authority. ‘These are highly technical and specialised bodies that defend, in one way or another, democracy itself’, says Ayala. ‘They act as counterweights to prevent power from being concentrated in one place – the capacity to choose, not to decide the direction of the country.’