One of the drafters of the U.S. Constitution, James Madison, famously wrote in 1788 in Federalist Paper number 47 that “the accumulation of all powers, legislative, executive, and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny”
More than 230 years later just south of the U.S. border, the Mexican Congress has decided to comply with almost all the wishes of President Andrés Manuel López Obrador (AMLO). Ahead of a key Mexican Supreme Court decision, AMLO chastised its members for allegedly blocking direct democracy mechanisms in the past. He later added: “Are we going to continue with the same thing? I take a step back and let each branch of government take responsibility”.
Last week, Mexico’s Supreme Court met to decide whether to go ahead with AMLO’s idea to hold a referendum on the potential prosecution of five former Mexican Presidents. Five of eleven members of the Supreme Court clearly laid out their views of why holding a referendum on whether to enforce the law was unconstitutional. A majority of six justices ended up listening to AMLO and ultimately the court decided to allow the referendum to happen. The arguments put forward were absurd.
Supreme Court President Arturo Zaldívar stated: “The referendum that is being presented to us does not exhibit anyone nor suggests that anyone is guilty”. However, President AMLO’s party (MORENA) collected thousands of signatures in support of the referendum explicitly asking Mexican citizens whether former Presidents Carlos Salinas, Enrique Peña and Felipe Calderón should go to jail. Zaldívar’s argument seems in direct contradiction to his 2012 defense to free an imprisoned French citizen given the “corrupt effect” that a staged-broadcast of her arrest had in the public’s perception of whether she was guilty or not.
Some of the Supreme Court justices conditioned their vote in favor of the referendum to a change in the wording of the question presented. In an unprecedented action, the referendum’s question was redrafted. It was not a minor change. The text of the new question as presented by the Supreme Court is now: “Do you agree or not that pertinent actions should be taken with adherence to the constitutional and applicable law to start a process of clarifying political decisions taken by political actors in past years with the aim to ensure justice and rights of possible victims?”
In the end, the question does not matter. President AMLO will make sure to ask Mexican voters the original question on the five Mexican Presidents and that the justices reformulated. AMLO has in the referendum a long-awaited propaganda tool that authorities estimate to cost the equivalent of US $372 million.
The referendum will take place on August 1, 2021, just two months after Mexico’s midterm election. The President’s party (MORENA) could attempt to change the Mexican Constitution again and make the two dates to coincide.
Was the Supreme Court’s decision to change the referendum’s question “a genius move” in order not to fight with AMLO? I do not know. The Supreme Court still has 17 key cases pending in its docket (actions of unconstitutionality and constitutional controversies). The court can still decide these cases in accordance to Mexican law and show us that it is still an independent branch of government.
It seems to me that the Supreme Court’s decision is a wrong one. However, as long as we can still go out and vote in elections we Mexicans should do it. That is the true limit to tyranny. We need to go out and vote in 2021.
I intend to vote in favor of the referendum question as posed by the Supreme Court. The question itself refers to acts of past Mexican government officials. I am interested to know if former President Luis Echeverría is guilty of the 1968 Tlatelolco student massacre. Yet, there are also some issues that if we were to clarify today, they could even help us save lives.
For example, it is urgent to know who decided that the main Mexican government goal in confronting the Covid-19 pandemic will have to be having enough bed availability in hospitals and not saving the lives of thousands of Mexicans who died at home. Also, we need to know who were those government officials who did not buy cancer medicines for public hospitals causing the death of Mexican children. One more question: why is there a seemingly lack of concern about the increase in the killings of Mexican women because of their gender?
I have so many other questions about actions taken by government officials. Each Mexican has their own.
I agree with what AMLO also recently said: “We want an authentic rule of law to be enforced so that there is no longer impunity. We want that everyone is punished equally, that there are no privileges”. The word “equally” is the key.
* Carlos Elizondo Mayer-Serra is professor at the School of Government and Public Transformation at Tec de Monterrey, in Mexico City. A Spanish version of this Op-Ed appeared first in Reforma’s newspaper print edition. Twitter: @carloselizondom