Is the judiciary the antidote to the tyranny of the majority or an obstacle to democracy? Recently, we have witnessed in Latin America a slow and sometimes unnoticed process of illegitimate control of the Supreme Courts by presidents, as happened in Venezuela, El Salvador and Nicaragua, or institutional reforms that facilitate the appointment of judges loyal to the president in office as happened in Bolivia and Ecuador. The most worrying issue is that the strategies to delegitimize and subjugate the judiciary happen in the name of democracy.
A series of episodes are taking place in Mexico in which, little by little, an attempt has been made to diminish the role of the Supreme Court of Justice of the Nation (SCJN) as a Constitutional Court and the legislature and the executive’s power of control. The most common argument to attack the judiciary is that of the current President López Obrador. His Morena Party and his allied political parties were elected by a resounding majority, so there should be no obstacles of any kind to implement their government projects regardless of their constitutionality.
The episodes of confrontation with the judiciary have gone beyond the arenas of institutional politics, have reached the streets, and have generated virulent reactions in social networks.
The judiciary as a counter-majoritarian power in action
The SCJN in Mexico has declared unconstitutional several legal reforms promoted by López Obrador, Morena and their allied parties and is likely to do the same with others. In April, the institution revoked the decree transferring the National Guard to the Army, and in May, the decree classifying major government works as part of national security for violating the right of access to information.
In response to the latter, López Obrador immediately issued another decree with the same characteristics, in defiance and contempt of such resolution. In May, the SCJN also intervened in the set of reforms, known as Plan B electoral, declaring unconstitutional the reforms to the General Laws of Social Communication and Administrative Responsibilities, and suspended four other reforms to the electoral laws in force, preventing their application.
All of them were approved by the majority of Morena and allies by fast track, without deliberation and violating parliamentary procedures. Such reforms limited the powers of the electoral authorities and reduced their structure under the argument of saving resources. All this put at risk the organization of the elections. Days later, the governor of the State of Veracruz and his government officials mobilized hundreds of people in front of the SCJN building carrying coffins with the names of some ministers, including its current president, Norma Piña, as a veiled death threat.
While these resolutions of the SCJN have been at the center of public attention in the first half of 2023. Other reforms promoted by Morena were also declared unconstitutional in 2022, such as the creation of a National Registry of Mobile Telephony Users (PANAUT) or that the Tax Administration Service (SAT) had the power to have biometric data of users and release it without the consent of the holders, just to mention.
It is probable that it will also declare as unconstitutional the voting of 18 laws, at a rate of one every 15 minutes, carried out on April 28 of this year, by Senators of Morena and its allies in an alternate venue, deliberately excluding the opposition. In view of the SCJN’s actions, the ruling party, instead of restoring the procedures in a democratic manner, with deliberation and adherence to the norms, has replicated the president’s disqualifications and has proposed law initiatives so that the members of the SCJN are directly elected by the citizens, with the objective of controlling and neutralizing it.
Within the SCJN itself, a block of three justices has been created who almost always vote in favor of the presidential and ruling party initiatives with absurd arguments, such as assuring that the army is a civilian institution because “its chief is the President of the Republic”; or that a decision of Congress cannot be revoked by the judiciary except for serious violations to the Constitution because the latter is not elected by direct vote of the citizens. When members of the judiciary conveniently bow to the policies of the government in office, they delegitimize the function of the same body.
Democratic republicanism fragility
The role of the judiciary is rarely questioned, and its powers and legitimacy are often called into question. It is therefore necessary to understand that the judiciary plays a political role within the state and is not only an interpreter of the law. Unlike legislators, governors or other political figures who must justify their actions and proposals to the public in order to be voted for, members of the judiciary work in opacity. It is difficult for citizens to access the institutions of justice because they operate with procedures that most are unfamiliar with, their language is cryptographic and unintelligible, and the results of their actions are difficult to observe since they lack political force and visibility.
On the other hand, they maintain a highly discretionary system of access to the judicial career and their members enjoy salary privileges. If we add to these considerations that in Latin America in general, and in Mexico in particular, one of the main social demands is the fair, prompt and expeditious delivery of justice, and that precisely this is largely lacking, it is understandable why it tends to be easy to delegitimize the judiciary with any argument, no matter how implausible it may sound. However, these considerations about the lack of knowledge of its functioning or the corruption that may exist within it should not be the banner to delegitimize its functions, because this same flaw would apply to any political institution.
Almost two centuries ago, Alexis de Tocqueville highlighted that the problem of democracies was that they could fall into the tyranny of the majority, an uncontrollable force that can go against their own rights. Hence, the need for an independent and autonomous judiciary, whose legitimacy derives from adequate processes of appointment of its members, and the prestige of its decisions based on reasoning that adheres to principles of law, laws and evidence. Faced with the processes of democratic erosion, the role of the Supreme Courts of Justice and their powers, such as the constitutional control of laws, are a means to prevent this deterioration, which is why, beyond individuals, they must be defended from authoritarian onslaughts.
*Translated from Spanish by Micaela Machado Rodrigues