Note: This piece originally appeared in Spanish by the Fundación para el Debido Proceso (DPLf), is a D.C.-based organization which promotes the rule of law in Latin America. Estefania Medina and Adriana Greaves are lawyers and co-founders of TOJIL, Estrategia contra la Impunidad.
To read the original piece, click here.
On September 15, Mexican President Andrés Manuel López Obrador sent a proposal to Congress on whether former presidents should be investigated and sanctioned for possible past crimes.
However, this proposal was unnecessary because the Mexican Constitution as well as the General Prosecution of the Republic and district prosecutions, are obliged to investigate when they know about a possible crime. Filing a criminal complaint is enough to initiate such investigations.
Although a referendum is not mandatory to commence investigations, the constitutional procedure to open it indicates that, once 33 percent of any of the congressional chambers, two percent of the electoral register, or the president accepts it, the Congress of the Union must send it to the Supreme Court of Justice to decide on the constitutionality.
The Supreme Court analyzes two issues: first, as previously mentioned, it reviews whether the subject is legal or prohibited by Article 35 of the Constitution. Secondly, the Court verifies that the question derives directly from the referendum’s subject: it must not be biased, must employ a neutral and understandable language, and must be posed in a categorical form—meaning, a positive or negative reply.
What happened during the Supreme Court plenary session on October 1?
The Supreme Court, unprecedentedly, ruled in favor of the constitutionality of the president’s referendum, in a six to five vote. This is a controversial decision because the Constitution explicitly establishes that popular consultations involving “restrictions of human rights and guarantees recognized in the Constitution and international treaties” are not appropriate.
Prior to the session, Minister Luis María Aguilar made a draft consultation that proposed to declare the president’s referendum unconstitutional based on five arguments:
- It conditions the effectiveness and validity of human rights.
- It puts the rights of victims at risk.
- It is contrary to the presumption of innocence and due process.
- It restricts the protection of rights since the investigation and punishment of crimes is an exclusive function of the Mexican state that cannot be subject to popular decision.
- The referendum violates the principle of equality.
The project was legally bulletproof and the referendum seemed likely to be found to contradict the Constitution. Nonetheless, beyond the result itself, the most worrying component was the session, which was led by six ministers—chaired by Minister President Arturo Zaldívar—who based their favorable opinions on political (not judicial) arguments. This resulted in a strange resolution because, although they declared the referendum to be constitutional, they also completely re-drafted the question. Evidently, the original question posed by the president did not pass the constitutional review. The new question is listed as the following:
“Do you agree or not that the necessary actions be carried out, in accordance with the constitutional and legal framework, to undertake a process of clarification of the political decisions made in recent years by political actors aimed at guaranteeing justice and the rights of potential victims?”
In addition, the justices declared that the referendum was not binding for justice officials. This is contrary to what is established in the Constitution as it establishes that popular consultations will be binding when 40% of the members of the nominal list—approximately 36 million Mexicans—go to vote.
In spite of the outcome of this referendum and the Supreme Court’s use of legal interpretations mixed with political arguments, we must recognize the other five justices that did not give into the political pressure and denounced the consultation’s unconstitutionality.
What will happen now?
Now that the president’s question has been approved, it is not subject to subsequent modifications, and will be sent to the Congress of the Union. Once approved, it will sanction the referendum call through a decree, and the National Electoral Institution will have to organize the vote. However, there is a foreseeable technical issue relating to the consultation date. Although the Constitution sets the date for the first Sunday of August, the government has set it for June 2021, coinciding with mid-term elections for congressman, 15 governorships, local legislatures, and municipalities.
Moreover, preliminary estimates have shown that the referendum will cost millions of Mexican pesos that could be used to battle the country’s greater social and economic issues. The most worrying issue of this referendum is the vulnerability of the Mexican democratic system when facing the legislative and justice branches, which have proven incapable of obeying the law and the Constitution when it contradicts the presidential mandate. The president’s consultation was unnecessary, unconstitutional, and expensive. We can only hope that this strike against justice does not turn out to be even more costly.