The Crisis of an Unpredictable State: The Case of Mexico

[Carlos G. Guerrero Orozco is a Mexican lawyer who holds a Master’s degree in government and public administration. Since 2015, he has been the chair of the board of DLM (Derechos Humanos y Litigio Estratégico Mexicano), a civil society organization that demands accountability in Mexico with a human rights perspective. Emiliano J. Polo Anaya and Paulina Lucio Maymón contributed to this article.]

Predictability is a quality that democratic countries around the world have tried to embrace to avoid arbitrary decisions by public officials and the subsequent violation of citizens’ rights. Knowing when and how the authorities will act gives citizens the certainty that their rights will be upheld. Although striving towards these principles, the Mexican State has become an unpredictable entity, leaving in its wake widespread human rights violations, an apparent constitutional crisis, and a weak rule of law.

Living under a framework of laws and institutions allows a populace to assume that their governing authorities will do exclusively what those laws empower them to do. This premise –supported by the principles technically defined as legality and legal certainty–comprises a set of requirements that a State must follow to have a positive impact on people’s lives. In other words, citizens must have clarity about the laws that can and will be applied by competent authorities with sufficient factual grounds and the proper legal motivation. As a result, citizens should be confident that the State will act within certain legal boundaries, and its policies will generate predictable outcomes. 

The principles of legality and legal certainty motivate public officials from the president, to the judges, to the leaders of local agencies to act with regularity and to avoid arbitrariness. Public officials serve citizens. Therefore, they are obliged to develop a competent public administration, which operates in the interest of citizens and under the highest standards of justice.

This issue is not new nor groundbreaking, and it should not motivate, in the 21^st century, a debate on the content and significance of the principles of legality and legal certainty. Nevertheless, in recent years, several Latin American and Caribbean governments have sought to nullify or restrict fundamental rights to amass greater powers that allow them to have a decisive role in the lives of citizens. It is a misconception that, as a result of free elections, political winners have received a blank check from their citizens to do as they please. This misguided belief fails to take into account the interests of those voters who refuse to accept that political parties in power govern under a unique truth and an unchallengeable ideology.

The symptom of an omnipotent State has been spreading in Mexico for several decades, even after it transitioned to democracy in 2000. The stench of arbitrariness, however, has revealed itself even more profoundly after the inauguration of Andrés Manuel López Obrador as the country’s president in 2018 (see here and here). López Obrador ran his campaign under the promise that his administration was going to change the government paradigm as Mexicans knew it. After the historic election in July 2018, in which an overwhelming majority of citizens supported López Obrador and his new party, millions of Mexicans opened the way to a self-proclaimed movement of national regeneration, as the name of López Obrador’s party suggests (Movimiento de Regeneración Nacional in Spanish). The new government would shake Mexico’s governmental structures and unearth the deterioration predating upon its institutions.

Under his administration, López Obrador has been commendable in his embrace of marginalized sectors of society, as well as in the ways he demonstrates, both institutionally and rhetorically, that corruption is the greatest obstacle to overcome in the construction of a democracy. Nevertheless, López Obrador’s government and many representatives of his movement have targeted the system of checks and balances and discredited and defunded civil society organizations that challenge his ideological movement.

In this environment, civil society organizations are striving to restore the checks and balances to the government, which has been taking away the legality and legal certainty of Mexicans and violating their fundamental rights. In recent years, civil society organizations have grown in size and strength. They have found domestic and international allies. And they have become part of the solution to the many problems that Mexico is facing. They have given voice to the thousands of victims of crime in Mexico, including persons disappeared by the State, marginalized groups, migrants, and those fighting for a corruption-free society. Civil society has also listened to the millions of Mexicans who want to have a predictable government and authorities that comply with the law. These organizations have taken these battles to the courtroom (see here, here and here), urging judges to exercise real checks and balances to the executive branch.

Civil society organizations, such as Derechos Humanos y Litigio Estratégico Mexicano (DLM), have litigated several cases in an attempt to restore normality to the lives of members of certain affected social groups and to prevent the government from imposing an autocratic system. The following examples demonstrate, on the one hand, the current administration’s consistent violation of the principles of legality and legal certainty and, on the other hand, civil society’s fight for justice, transparency, and the rule of law.

2. Civil Society Fights Against the Erosion of the Separation of Powers

At least three times, López Obrador has nominated individuals to key leadership positions who are unqualified because of their political ties to the president’s party and government. Although civil society organizations have challenged these nominations, the courts have continuously shut the door.

First, in 2018, the Anticorruption Prosecutor Office, a government agency responsible for investigating and prosecuting crimes related to corruption at a national level, was created under the principle of technical and operational autonomy. Although the Attorney General of Mexico has the power to appoint the Anti-Corruption Prosecutor, federal laws prescribe the parameters and procedures to do so. These include steps to ensure transparency and the participation of civil society, a public bidding process, and a confirmation hearing before the Senate.

Nevertheless, during the appointment process of the current Anti-Corruption Prosecutor, the Attorney General of Mexico conducted a discretionary and opaque process that discouraged citizen participation. The appointment process, or lack of it, deprived Mexican society of the right to bring into question the widely known political links between the appointee and López Obrador’s administration, and thus her suitability to run Mexico’s main anti-corruption body. After DLM filed a lawsuit, a federal trial court in Mexico City issued a resolution, stating that civil society organizations do not have a legitimate interest to challenge the appointment. DLM filed an appeal before a Mexican Court of Appeals.

Second, in 2019, López Obrador and the Senate, where the president’s party holds an absolute majority, appointed another “friend” as head of the National Human Rights Commission, an autonomous body responsible for redressing human rights violations. The effectiveness of the commission depends, to a large extent, on its head’s ability to defend fundamental rights freely and independently. Nonetheless, the new appointee was the political leader of López Obrador’s party (see here and here). Further, the Senate did not reach the sufficient number of votes required by law to appoint her (see here and here). After several judicial challenges, the courts also dismissed this case on the grounds that neither citizens nor organizations have the right to challenge the election of the ombudsperson. The lack of an effective remedy in domestic courts opened the way to take the case before the Inter-American Commission on Human Rights.

Third, in the most recent designation to the Supreme Court, the president and the Senate again appointed a person who does not meet the minimum requirements of independence. López Obrador nominated a candidate to the country’s apex court, whom he had previously designated as the head of the country‘s tax agency. Judicial independence is crucial to ensure that justices and judges are not influenced by political or partisan interests, and thus are capable of delivering justice. Consequently, Supreme Court justices are not supposed to have links with the political leadership that appointed them. Although the designation was challenged before federal courts, two courts have ruled that the selection of justices is unchallengeable. These decisions also opened the way to apply for review before the Inter-American Commission.

3. Civil Society Fights for the Rights of Migrants, Refugees, and Asylum Seekers

In 2019, the governments of Mexico and the United States started a negotiation process to avoid the implementation of trade tariffs. The primary purpose of the so-called “Joint Declaration” between the two countries was to address the structural causes of migration. In the agreement, Mexico signed international commitments including to deploy the new National Guard to the border, to stop irregular migration, and to receive returned migrants from the United States to await their migration or asylum resolutions in Mexico.

The move was legally questionable because of the clear violation of international refugee law, the criminalization of migrants, and the extrajudicial exercise of power by the authorities involved (e.g., the Ministry of Foreign Affairs overstepped the powers of the Ministry of the Interior). A case before a Mexico City’s Federal Court, filed by Fundación para la Justicia y el Estado Democrático de Derecho (Fundación Justicia) to point out the government’s violation of international treaties and the lack of legality and legal certainty, is pending resolution.

Migrants and asylum and refugee seekers have been hugely affected by COVID-19. The Mexican authorities have failed to protect their life, integrity, and health (e.g. the lack of sanitary controls in the border, the lack of medical assistance in migratory stations and in the streets, the lack of clear and public deportation procedures for migrants). At least two lawsuits have been filed in Baja California and Chihuahua –two border States in Mexico’s northern region– to protect migrants’ rights, particularly the rights of those persons expelled from the United States as a consequence of Trump’s anti-immigration policies.

The role of civil society organizations has been relevant in various ways. First, organizations are advocating on behalf of an undetermined group of migrants and asylum seekers and motivating judicial resolutions that protect them (e.g. the resolution issued by a judge in Chihuahua, ordering the president to allocate resources to the local government in order to support migration related expenses). NGOs’ work has been performed despite the federal government toughness to comply with judicial resolutions. Second, the judicial challenges have been centered on the government’s failure to protect human rights, rather than on positive violations of human rights.

4. Civil Society Fights Against the Coronavirus Pandemic Amidst López Obrador’s Feeble Response

López Obrador has become known for his dismissive and irresponsible attitude toward the coronavirus. The General Council of Health, the organ with the constitutional authority to implement regulations and measures to respond to epidemics, has been mostly absent from the Mexican government’s response to the pandemic. Because the federal government has also failed to coordinate with state and local authorities, they have responded to the epidemic as they see fit. As a result, Mexicans have witnessed a disorganized and irresponsible response to the current sanitary crisis that has claimed more than 50,000 lives in the country. Furthermore, the Mexican federal government has decided, in contrast to the majority of the world’s governments, that tests are not an effective way to control the pandemic. Meanwhile, the number of cases and deaths are rising as well as corruption in public hospitals related to public procurement.

DLM, in collaboration with the Transparency and Anticorruption Initiative of Tecnológico de Monterrey, a private university in Mexico, has implemented an online platform where people can report the corruption acts they have suffered during the diagnosis or treatment of coronavirus. The digital tool has been selected by the Paris Peace Forum, as a project that will help respond to the crisis in Mexico. As of the third week of August, the digital tool has received more than 347 reports regarding bribes for better medical treatment, medicines, or hospital beds, as well as cases of sexual abuse. Civil society organizations are working with the authorities to prevent unduly acts in Mexico amidst the pandemic.  

Conclusion

The background and cases presented in this article highlight the unpredictability of the Mexican State and its failure to comply with laws, processes, and rules. Judges in Mexico are working to determine whether the actions and omissions of Mexico’s authorities could be framed within the definition of the predictable State, which is one that complies with the law, gives certainty to its citizens, and respects human rights. Civil society organizations are working together to fight back against the erosion of the rule of law in the country and to promote the separation of powers. National and international stakeholders should combat any government that might be heading down the path of an authoritarian regime, where secrecy and arbitrariness prevail.