Judges also make politics

On December 21, 2022, National Autonomous University of Mexico (UNAM) academic Guillermo Sheridan proved that Mexico’s current Supreme Court of Justice of the Nation minister (SCJN), Yasmín Esquivel, had totally plagiarized an undergraduate thesis with which she obtained her law degree in 1987. In the following days, Esquivel systematically denied it, but in UNAM’s digital archive, which contains all the theses, the plagiarism could be confirmed. 

Finally, on January 11, the university confirmed that the minister obtained her degree fraudulently and in collusion with her thesis adviser. However, the university itself pointed out that the Ministry of Public Education, the State authority in charge of recognizing academic degrees, is the body that can withdraw the degree.

Almost everywhere in the world, the judiciary is a disciplinary monopoly; only those who have a law degree can access the judicial career. An academic degree demonstrates training and qualifies a person to practice a profession, but, if obtained fraudulently, that entire career will have been a simulation. 

Therefore, this is not just another case of academic plagiarism. This is a supreme court magistrate, one of the most important positions in the State, and her legitimacy is both based on the formal process to appoint her and on her career and reputation.

Esquivel, however, is the wife of José María Riobóo, one of the main contractors of Mexican President Andrés Manuel López Obrador, and very close to him since he governed Mexico City. This condition, and not so much her career, enabled Esquivel to be proposed by the Executive to become minister of the SCJN. Thus, her case puts into relief the legitimacy of judges, the weight of their decisions, the significant political role of judicial institutions as guarantors of the rule of law, but also the dangers of the politicization of justice.

Judges are not the mouth of the law

Judges make policy since their actions and decisions have a decisive influence on the political system. Montesquieu’s dictum, “judges are the mouth through which the law speaks, inanimate beings who can moderate neither its strength nor its rigor”, is a misleading and unfortunately widespread view.

Laws are born in parliaments and, therefore, are political products with objectives and purposes. For laws to work and for their application to be fair, they must be constructed with the general good in mind, and even so, they can be manipulated. Hence, the role of judges is fundamental. When do the actions of judges contribute to the improvement of democracy? The answer is: when they legitimately enforce the rule of law.

In December 2022, a criminal court in Argentina sentenced Cristina Fernandez, vice president and leader of the current ruling group, to six years in prison for corruption during her two administrations. During the process and despite the evidence against her, Fernandez never ceased to consider herself the victim of a “judicial mafia”

In Brazil, Operation Lava Jato (Car Wash scandal) led in 2014 to the discovery of a money laundering network involving more than forty politicians and civil servants of Petrobras, the largest oil company in the country. As a consequence of the misapplication of laws and wrongful pressures towards judges, but also the corruption of some of them, the case became politicized to the point of imprisoning the now and again president Luis Inácio Lula da Silva. In 2019, the sentence was overturned, and the Lava Jato case was called into question.

Based on the investigations of Odebrecht, a Brazilian construction company that bribed to win public works contracts, politicians and civil servants at various levels of, among other countries, Brazil, Argentina, Colombia, Peru, and Venezuela, were tried and imprisoned.

But situations vary from country to country. In cases such as Peru, where former presidents Alejandro Toledo, Alan García, Ollanta Humala, and Pablo Kuczynski are among those under investigation, the justice system has been forceful and has passed judgment on politicians of all political sides. Meanwhile, in Mexico, Emilio Lozoya, a high-level civil servant very close to former President Enrique Peña Nieto and with numerous accusations and evidence of illicit acts, enjoys probation.

The judicial system is a power to control other powers. For this reason, politicians in Latin America, particularly presidents, have tried to subdue it. The appointment of the highest judicial positions in almost all countries in the region is a political process in which judicial career and prestige often count for little.

The recognition of the political role of the courts and supreme courts is due to the democratization processes that led to the creation of new Constitutions or profound constitutional reforms to affirm political, social, economic, and cultural rights. It is not that they used to be passive, and now they are active, but rather that democratization has expanded their role as protectors of such rights. However, it should be noted that it also favored the judicialization of politics, since the resolution of issues that were previously decided in the political arena are now resolved through the courts.

The Judiciary is a power that does not derive its legitimacy from the ballot boxes. Citizens accept judicial decisions because they trust that judges meet the requirements established by law and that their training and performance ensure that such decisions adhere to the principles of law and are oriented towards the pursuit of justice.

In almost any country, if doctors are found to have cheated to obtain their degree, they are immediately removed from their position, regardless of their record. Why can’t the same thing happen to a lawyer?

Minister Esquivel obtained her degree, aware that she was committing fraud. Now, by remaining in office, she jeopardizes the legitimacy of the SCJN and the entire scaffolding of the Mexican judicial system. Any court decision on cases similar to those mentioned above, involving socially sensitive and politically relevant issues, will be shrouded in suspicion before the verdict is even known. The SCJN will no longer have the prestige it should have, for without legitimacy, the legality of judicial decisions will be in question.

*Translated from Spanish by Camille Henry

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