Guardians of Democracy: Battling for the Rule of Law in Mexico

In 2018, Andrés Manuel López Obrador won the presidential elections, and his legislative coalition—led by Morena, his party—secured a commanding victory in both houses of the Mexican Congress. The triumph of the first leftist government1 in the democratic era was built on promises to uplift marginalized communities and aggressively counter corruption. Slogans such as “For the good of all, the poor come first” and “There cannot be a wealthy government with a poor populace” resonated deeply with Mexican voters.2

However, once at the helm, López Obrador’s administration showcased a shift in focus. This was manifest in proposals that undermined Mexico’s democratic institutions and attempts at exerting undue influence over judicial processes.3 Newly enacted electoral laws in 2023, which aimed at diluting the power of electoral institutions, cast a shadow on the legitimacy of the 2024 elections. Actions to dismantle the National Institute for Transparency, Access to Information, and Protection of Personal Data (INAI) jeopardized freedom of information. More recently, an attempt to drastically reduce the budget of the Federal Judiciary puts the justice system at risk of suffocation. Amid these challenges, the Mexican legal community mobilized, employing legal strategies to protect democracy and the independence of the judiciary.

The Promise of a Modern Avenger

Throughout his campaign and subsequent presidency, López Obrador carved an image not of a traditional savior but more of a modern-day avenger. He projected himself as one seeking to rectify profound societal injustices, especially those plaguing the impoverished sections of society. His narrative was laced with claims of having been thwarted by the “mafia of power” in previous presidential bids.4 However, at least since 2000, factors such as an independent electoral body, an emerging separation of powers, and an increasingly effective and independent judiciary have guaranteed democratic conditions in Mexico. Lopez Obrador benefited from this institutional framework and achieved a landslide victory in 2018. After being elected, López Obrador acknowledged the contribution of the National Electoral Institute and the Federal Electoral Court in ensuring a transparent election,5. Furthermore, he promised that he would have “neither messenger pigeons nor menacing hawks” and that the judiciary would not “be subjected to pressures or illegitimate requests.”6

The Erosion of Democratic Institutions

Nevertheless, once in power, a different narrative began to unfold. Institutions that were pivotal to Lopez Obrador’s ascent were now characterized as overly independent and economically burdensome. This perspective culminated in various proposals aimed at overhauling Mexico’s democratic framework. Some of these targeted pivotal democratic institutions, like the judiciary, and autonomous entities responsible for essential rights like voting and public access to information.

In the face of these potential erosions of democratic pillars, various entities—including private practitioners, minorities in Congress, the Senate, NGOs, and academics—rallied. They leveraged legal strategies to safeguard democracy and ensure the independence of the judiciary in Mexico.

Defending Judicial Independence

López Obrador’s administration put forth several legislative initiatives to reform the judiciary. Some were court-packing plans that presumably sought to influence the Supreme Court’s ideological composition by increasing the number of justices.7 Another notable proposal, which was expedited, aimed to extend the term of the Supreme Court’s Chief Justice, Arturo Zaldívar, perceived as amenable to the President’s viewpoints.8 This proposal was later invalidated by the Supreme Court following legal challenges (unconstitutionality actions) initiated by parliamentary minorities of both the Chamber of Deputies and the Senate.9 Unconstitutionality actions are legal instruments available in the Mexican legal system that enable certain entities, such as parliamentary minorities, to challenge laws they believe to be unconstitutional.

This period also witnessed public tirades by President López Obrador against the judiciary during his daily “morning press conferences.”10 Accusations ranged from corruption and bias11 to excessive staffing.12 The most recent volley included a proposal to slash the judiciary’s budget by 30%.13 After this announcement, López Obrador publicly scrutinized the 2024 federal judiciary budget, making pointed comments against its constituents.14 Following the lead of López Obrador, Ignacio Mier, the Morena party’s parliamentary leader in the Chamber of Deputies, presented a bill to dissolve almost all of the Federal Judiciary’s trusts. These trusts were established to secure certain labor rights and social benefits for workers, in addition to financing the growth of judicial infrastructure.15 Nonetheless, this initiative has been publicly justified as a means to curtail the “privileges” and excessive salaries of the justices. 16 Having gained approval from the Chamber of Deputies, the proposal will next be deliberated upon by the Senate17. It’s worth noting that the deadline to approve the judiciary budget is November 15.

Defending Transparency

López Obrador’s motion to disband INAI, an independent agency crucial for transparency and public access to information in Mexico, also garnered attention18. The INAI budget saw significant cuts, and with the President and the Senate not appointing three new commissioners, the body’s functionality was compromised, given that the law mandates that INAI’s board must convene with a minimum of five out of its seven members.19 Without enough commissioners, INAI could not decide on many freedom of information request appeals.20 In response, INAI took legal action filing a constitutional controversy against the Senate for their omission, leading the judiciary to mandate the Senate to appoint the new commissioners and to authorize its board to convene with four members provisionally.21 Constitutional controversies allow certain entities, including independent agencies, to challenge acts or omissions they believe infringe on their constitutional autonomy or violate the Constitution in some other manner. This decision, along with a previous injunction that allowed INAI to function effectively,22 reaffirmed the Supreme Court’s role in defending the human rights of individuals to access public information and protect their personal data.

Defending the Independence of Electoral Institutions

Under the guise of an austerity campaign, López Obrador’s proposed electoral reform, comprising Plan A (a constitutional amendment initiative) and Plan B (a reform to secondary laws), aimed to curtail the powers of Mexico’s respected National Electoral Institute (INE). In April 2022, he proposed a constitutional reform purporting to establish “pure democracy” and “preclude further fraud.”23 This proposal, termed Plan A, envisioned transformative changes, including weakening INE’s powers, eliminating all state election courts and state electoral management bodies, ousting the current members of INE’s board and the judges of the Federal Electoral Court, and slashing the public funding for political parties. The justification offered by the President was to reduce the “expense of democracy” at the cost of breaking down electoral federalism and weakening electoral oversight.24 However, this proposal could not garner the required votes for amending the Constitution.

Sensing the impending rejection of his constitutional amendment, López Obrador, in November 2022, unveiled a set of reforms to secondary laws, dubbed Plan B. Stating the goals as cost reduction and fraud elimination, these secondary law reforms were portrayed as alternatives to the rejected constitutional reform.

The first part of Plan B, sanctioned on December 27, 2022, through a fast-tracked procedure, loosened the legal constraints preventing public officials from disseminating government propaganda during electoral campaigns. The second part, approved on March 2, 2023, also fast-tracked for approval, weakening foundational electoral institutions noticeably. This legislation significantly reduced the INE’s professional and permanent staff, undermined INE’s self-regulatory capacity and the Electoral Court’s judicial review powers, limited affirmative actions for women and minorities, interfered with INE’s budgeting process, and permitted excessive Executive intervention.

The introduction of Plan B served as a catalyst, prompting a swift and concerted response from the legal community. The Supreme Court was inundated with various legal challenges against Plan B, including constitutional controversies (174), unconstitutionality actions (15) lodged by parliamentary minorities25 ,and multiple amparos submitted by employees of the INE. This flurry of legal activity underscored the depth of concern and the commitment to ensuring the plan’s adherence to constitutional principles. The second part of Plan B faced similar resistance, with eight actions of unconstitutionality and twelve constitutional controversies submitted to the Court.26 The Court’s deliberations were further enriched by the consideration of numerous amicus briefs. These briefs, submitted by a diverse range of stakeholders, emanated from civil society groups, academic institutions, bar associations, legal practitioners, and political parties. Their collective insights provided a holistic perspective on the issue at hand, underscoring its significance and far-reaching implications. The Supreme Court, on May 8, 2023, found the first part of “Plan B” unconstitutional due to violations of the legislative process. The second part of the plan met the same fate, as it was wholly invalidated on June 22, 202327.

The Battle Continues

While many battles have been fought, the war over judicial independence in Mexico is far from over. President López Obrador, undeterred by past setbacks, continues his assault on the foundations of Mexican democracy. As we speak, the Senate is deliberating on slashing the budget for the judiciary. This move, cloaked in the guise of fiscal responsibility, poses an immediate threat to the institution’s efficacy and independence.

As the electoral season gears up, with campaigns vying for the nation’s highest office, the judiciary’s role becomes even more critical. To garner support for his party, the President has made one of his most prominent proposals: a constitutional amendment enabling the direct election of Supreme Court justices. Dubbed “Plan C,” this initiative is not just another political maneuver. If realized, it would fundamentally alter the Mexican legal landscape, undermining the checks and balances that have kept power in check during Mexico’s democratic era. The President’s rallying cry is clear: secure enough votes to attain overwhelming majorities in Congress, amend the Constitution, and complete his vision of transforming the nation.

As Mexico finds itself at this critical juncture, one fact remains unequivocally clear: an independent judiciary is not merely a luxury but a fundamental cornerstone of a robust democracy. The spirited resistance from parliamentary minorities, independent agencies, government employees, legal practitioners, civil society, academia, and bar associations against endeavors to undermine this institution speaks volumes about the tenacity and determination of the Mexican populace. These stakeholders tapped into an array of legal remedies within the Mexican system designed to contest unconstitutional laws. Their strategic utilization of these tools serves as an inspiring testament to democratic resilience. Yet, it’s vital to note that the efficacy of these efforts hinges on an independent judiciary, one that can impartially assess these challenges and prioritize the constitution above any political bias.

Adriana Garcia is an Expert Advisor at the Stanford Law School Rule of Law Impact Lab.
Javier Martin-Reyes is a Law Professor and Researcher at the National Autonomous University of Mexico.

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