A brilliant leader once asked “the people” to make him emperor in a national referendum so that he could preserve his country’s revolutionary transformation and protect it from the avenging agents of the corrupt, ousted ancien régime. It would be a stretch to claim that Andrés Manuel López Obrador (AMLO) is replicating Napoleon Bonaparte’s assumption of dictatorial power via an exercise of coerced popular sovereignty. AMLO is not in Napoleon’s league – but then, who is? – in terms of ambition or strategic genius. That’s the good news. The bad news is that even his half-hearted, drawn out Bonaparte imitation is corroding Mexico’s rule of law, and threatening to undermine the fragile democracy he claims to champion.
To date, AMLO has deployed his beloved “consulta popular” referenda of dubious legitimacy to block previously approved projects like the Mexico City airport and a Constellation Brands bottling plant in Baja California, and to greenlight pet projects like the Tren Maya and the pricey oil refinery at Dos Bocas. Now the president is striving to put two questions to voters alongside their mid-term ballots next year: his gimmicky “revocación de mandato” (initially scheduled for 2022) that would allow voters to decide if he should be allowed to finish his term; and whether his government should investigate and prosecute any crimes committed by five of his predecessors.
There is no guarantee that AMLO will get his wish of conveniently inserting both himself and his predecessors into the mid-term election, as Mexico’s Supreme Court must still review the (very suspect) constitutionality of the move, but the president’s endgame of seeking more power to act on behalf of el pueblo is clear. AMLO disingenuously talks about the unprecedented recall initiative as a potential limitation – as opposed to expansion – of his power, but its introduction into a well-established one-term-limit presidential system lays the groundwork for el pueblo to beg him to stay down the road. History is not crowded with leaders who went out of their way to change the rules of the game in order to minimize their power.
Especially not leaders who simultaneously claimed they needed more power to confront the enemies of the people, as AMLO is essentially claiming with his ham-fisted referendum on bringing predecessors to justice.
Whether you think it’s a good idea or a bad idea to prosecute past presidents – neoliberalism’s Gang of Five, from Salinas to Peña Nieto, listed by name in the proposed referendum question – we should all be able to agree that this is the wrong way to go about it.
By playing craven politics with the issue, AMLO mocks his own supporters’ steadfast conviction that whatever the man’s other faults as president (his response to Covid-19 comes to mind), he is sincere in his determination to end Mexico’s vicious corruption. The president’s bizarre letter to the Senate in support of the measure gives the game away; this is first and foremost about politics. The letter is a screed against what he considers his predecessors’ disastrous “neoliberal” and “neoporfirista” policies, suggesting that the underlying crime he is most concerned with is that others deigned to embrace a worldview antithetical to his own (coincidentally, a diverse group of more than 650 intellectuals published a letter last week asking the president to cease his intolerance towards free speech). Only when he arrives at his bullet point on Enrique Peña Nieto does AMLO introduce allegations of actual criminal malfeasance, referencing Emilio Lozoya’s claims of the Odebrecht millions in illegal campaign funding and legislative bribes.
Which as a legal matter, of course, is the most troublesome aspect of AMLO’s letter, and of the proposed referendum itself – as it violates the potential defendants’ due process rights. Instead of a neutral ask to investigate past heads of state, the current head of state has written a rant accusing them of all sorts of disasters and included allegations that have not yet been properly introduced in a judicial process. Those gathering signatures for the referendum deployed banners asking people if they wanted to see the photographed presidents go to jail. So much for the presumption of innocence. By naming the members of the Gang of Five neoliberals (not all of the living presidents, incidentally), the referendum amounts to a bill of attainder (legislation that inappropriately targets individuals), and would seem to run afoul of Mexican laws that prohibit referenda that threaten individual or human rights.
The most insidious aspect of this entire exercise is how completely unnecessary it is, assuming the goal is in fact to hold past presidents accountable before the law. As plenty of legal analysts have been quick to point out, there is nothing currently preventing federal prosecutors from investigating and prosecuting crimes committed by former presidents who have left office.
Criticizing AMLO’s referendum isn’t a partisan attack. I have no sympathy for any president who betrayed the public trust while in office and committed crimes, regardless of whether I agreed or not with his policies. Mexico must put an end to the vicious impunity enjoyed by law breakers in all walks of life, especially those in power. And the more strongly you suspect a past president may have committed a crime, and the more serious you believe those crimes might have been, the more sickened you should be that AMLO is choosing to demagogue the issue for his political purposes, rather than to allow justice to run its course. Instead of prioritizing the pursuit of justice, AMLO wants to ask voters halfway into his term whether the law should apply equally to all. Instead of reaffirming this as a categorical imperative for Mexico’s democracy, AMLO is conditioning the principle to the electoral whims of the majority. AMLO himself goes on to state disingenuously in his bizarre letter to the Congress that he would vote not to prosecute the former presidents.
There are good reasons to exercise caution before criminalizing all politics, and before turning every change of government into a prosecution of its predecessors. But AMLO and his supporters are not engaging in a nuanced deliberation of the trade-offs involved, and where the line should be drawn – they are appropriating the issue for their own gain. This stems in part from AMLO’s inability to see himself as the powerful president that he is, instead of continuing to play the role of aggrieved activist.
If there is anything more dangerous that a leader with unchecked power, it may be one who claims to have less power than he already has, in order to demand more to advance the people’s will. Napoleon, mind you, had plenty of power to quash the revolution’s enemies as First Consul, and yet he pretended otherwise to demand an imperial crown.
What’s tragic about the petty shenanigans of the “Fourth Transformation” is their opportunity cost for Mexico. AMLO took office with an unparalleled mandate and credibility to consolidate Mexico’s democracy and the rule of law, and the current economic decoupling of China and the United States offers Mexico a once-in-a-generation opportunity to leverage the nation’s resources and advantageous place in the world. But instead, with every one of his ill-considered, impulsive referenda, the erratic Mexican president is making the outside world ponder not whatever question happens to be on that particular ballot, but rather the question of whether Mexico is a serious country with a reliable democracy that respects the rule of law.
