The López Obrador administration is determined to pass unconstitutional laws. Its playbook is quite simple: leverage its governing majorities in Mexico’s Lower House and Senate to approve any bill to its liking. Pending any appeal in Mexican courts, president Andrés Manuel López Obrador and his party will implement those laws as long as they can.
The government pushed two clearly unconstitutional laws in recent days. The first one involved a provision included in a bill to reform Mexico’s judicial branch that would extend two years the mandate of justice Arturo Zaldívar as president of the Supreme Court (SCJN) and the Federal Judiciary Council (CJF). It would also extend the terms of other six other members of the CJF, an administrative organ that oversees the judicial branch and that would now oversee the appointment of hundreds of new federal Mexican judges and magistrates.
Mexico’s Constitution is clear: the Supreme Court’s president term is four years without the possibility of reelection. President López Obrador defended the legal travesty’s arguing that the legal provision has the loftier goal of improving the Judicial branch. Considering that, violating the Mexican Constitution is for the president a mere peccadillo.
The Mexican Supreme Court will eventually debate whether the new legal provision extending Zaldívar’s term is constitutional or not. However, president López Obrador is counting on having four justices loyal to him that will eventually reject any unconstitutionality challenge. By the end of the year, the president could likely have those four votes given that Minister José Fernando Franco is scheduled to be replaced. Last year however, the Supreme Court voted unanimously against the intention of Baja California state governor Jaime Bonilla to extend his term in office. Today, justice Zaldívar’s reputation is at stake. The legitimacy of the Mexican Supreme Court is being tested.
The second problematic bill was a reform to Mexico’s telecommunications law that would force Mexican mobile users to surrender their biometric data to phone carriers. The governing party’s weak justification for the law was the fight against organized crime, and in particular the illegal use of cellphones in Mexican prisons to engage in phone scams and extortions. Cellphone signal jammers would solve the issue, but that has been thwarted by corruption in the prison system.
It is precisely corruption that could put Mexicans’ biometric data at risk of ending up in the wrong hands. Not to mention that the government could be tempted to use it in an illegal manner. Authoritarian governments around the world are the only ones requesting such information from phone companies. No democratic government has ever implemented something similar. Worse still: criminals will surely figure out how to access cellphones without providing any biometric data.
Countless individual lawsuits against the new biometrics mandate will surely follow. Mexican judges will surely grant temporary suspensions to the law. As López Obrador has said in unrelated cases, Mexicans’ human rights should be prioritized, in this case the right to privacy.
It is most probable that a section of the Supreme Court will probably uphold the petitions for injunctive relief against the telecommunications law. But should there be controversy, four votes are enough for the biometrics provision to be declared constitutional. What happens to these lawsuits will depend on the how lawyers and justices construct their argument against it.
In any case, a constitutionality case in Mexico takes time. According to its most recent data, the Supreme Court has 21 constitutionality cases pending to be debated. Meanwhile, López Obrador’s controversial laws remain constitutional (except for those Mexicans successfully petitioning for injunctive relief).
It is inevitable to think that the idea of extending the Supreme Court president’s term in office is a dry run for a future attempt at something similar when president López Obrador’s mandate is up in 2024. In both cases, the Mexican constitution clearly marks term limits. But if the Supreme Court’s president is given some additional years in office, why not the country’s president?
All Mexicans should know well the relevance of this year’s midterm elections where the control of the Lower House of Congrss is at stake. The president’s party and its allies only need to preserve a simple majority. They can afford lose their super majority in the House. Now that the Supreme Court could end up turning loyal to him, president López Obrador can keep passing unconstitutional laws without fear that they would be overturned.
* 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