In an old Prussian tale, famous in the legal world, a king decides to expropriate a miller’s estate because it obstructs the view from his palace. The miller goes to the higher court in Berlin, who agrees with him and forces the king to pay him compensation. Hence the phrase: “There are still judges in Berlin”. In the current Mexican context, three recent decisions handed last week by the country’s top electoral tribunal (TEPJF by its Spanish acronym) can be described as historic. At the very least, the rulings halt what seemed like an inevitable slide into chaos.
Two of the rulings addressed the candidacies of two members of Mexico’s Morena governing party attempting to run for the state governorships of Guerrero and Michoacán, along the country’s Pacific coast. In both cases, the aspiring candidates did not comply with submitting their pre-campaign expense reports before Mexico’s National Electoral Institute (INE by its acronym in Spanish) by the established deadline. It might seem like a trivial matter, but filing expense reports is required by Mexico’s law. President Andrés Manuel López Obrador’s Morena party, however, refused to accept the INE decision rejecting both candidacies. After a weeks-long tug of war -and several presidential press conferences brimming with the usual insults- TEPJF ruled in favor of the INE’s decision. This was particularly notable due to the fact that the electoral tribunal seemed hopelessly intimidated and subdued by president López Obrador.
The third ruling is much more significant because López Obrador’s Morena party and its allies had successfully managed to maneuver a higher number of seats in Mexico’s Lower House after the 2018 presidential election. The trick involved swapping members of Congress among those parties that are part of Mexico’s governing coalition in the Lower House. Morena’s electoral coalition ended up officially having 334 seats in the Lower House when in reality, the Mexican Constitution sets an absolute limit of 300 and an overrepresentation of no more than 8 percent when allocating proportional representation members. If this rule, as set forth in Mexico’s law, had been upheld in 2018, the Morena party would not have had the supermajority that it currently enjoys. This maneuvering has yielded success to Morena by passing one reform to the Constitution after another without the slightest interest in consensus-building. Originally that was the law’s original intention. One can prompt negotiation among parties by limiting the number of representatives per political party.
Regardless of the odds that the governing Morena party along its allies could obtain in the coming June mid-term election, last week’s TEPJF decision was historic. The ruling went against López Obrador own desires. Beyond the substance of the ruling (unexceptional in itself), the TEPJF tribunal dared challenge the Mexican President, a milestone in his administration and hence its extraordinary significance.
The TEPJF tribunal’s ruling against overrepresentation in the Mexican Congress touches the core of much of the disagreement that has consumed Mexico in recent decades. To sum up, the country has been engrossed since the 1960s in a disagreement over its future. Some politicians want Mexico to return to an era of “revolutionary nationalism” while others want a modern Mexico, open to the world.
The Mexican government’s decision in 1982 to nationalize Mexico’s private banks, a visceral decision by then president López Portillo divided the country, and placed two camps at odds. It also ushered in an era in which the Mexican Constitution repeatedly (and contrarily) underwent reform with no attempt at building a consensus to confer longevity to the reforms. During the 1990s, reforms were hammered out between the longtime hegemonic party PRI and the center right PAN, excluding the PRD. Mexico’s 1996 electoral reform was agreed on by the three main Mexican political parties. In the end however the PRD didn’t back the regulatory law at the time. The reforms that followed, particularly those of the former Peña Nieto Administration, alienated half of the voters, opening the door for the reversal that López Obrador has now carried out. The point is that political conflict is reflected in how legislating is conducted, especially in constitutional matters, intensifying differences and polarizing the country. Instead of adding, it imposes itself on forces and ends up subtracting. López Obrador did not pioneer this course of action, he is only inflaming it.
Under normal circumstances, last week’s TEPJF tribunal rulings would have been run-of-the-mill, for they are neither exceptional nor unprecedented. However, in the current context, the court’s decisions constitute true milestones that cannot be overlooked or minimized. In line with the professional and courageous manner in which Mexican federal district judges acted to halt AMLO’s electricity reform and recently, the collection of Mexicans’ biometric data just for using a cell phone. The electoral court prevailed over the preferences of a President who doesn’t skimp on threats or insults to try to get his way.
Now the ball is in Mexico’s Supreme Court’s court, which has scores of pending issues, all of them burning and of the greatest significance. Confidently, the justices that sit on the Supreme Court will read the writing on the wall of this week’s rulings. The high court has three key decisions pending that directly impact Mexicans’ freedoms, the validity of the Mexican Constitution, individual rights, and countless relief proceedings frozen by orders of whom shouldn’t hold sway over them. Perhaps this is shooting for the moon, given the way that Chief Justice Zaldivar responded to the recent controversial provision to extend his term and that of his friends. Regardless, the INE and the TEPJF acted independently at a key moment for Mexico. One win after many losses.
* Luis Rubio is chairman of México Evalúa-CIDAC and former chairman of the Mexican Council on Foreign Relations (COMEXI). A Spanish version of this Op-Ed appeared first in Reforma’s newspaper print edition. Twitter: @lrubio