OPINION

By ENRIQUE KRAUZE

If Mexico’s Supreme Court of Justice (SCJN) declares the unconstitutionality of President Andrés Manuel Lopez Obrador’s (AMLO) so-called Plan B initiative — which passed in Congress last week and was signed into law on Thursday, March 2 —  it will have, in effect, honored the highest political tradition of Mexico: its liberal legacy.

Mexico’s liberal Constitution of 1857 granted the judiciary absolute independence from the legislative and executive powers, to the point of making it the summit of the country’s political balance. On the one hand, in the absence of presidential meddling, the current head of the SCJN, Norma Lucía Piña Hernandez, took her place as Mexico’s first chief justice on Jan. 2. This is how Benito Juárez, Mexico’s first indigenous president, came to power in 1858. On the other hand, while it could not remove an authority that was considered illegitimate due to irregularities in his electoral process, the court could protect citizens against the provisions of that authority. This was the case in the Morelos Appeal of 1874, in which the SCJN declared the government of General Francisco Leyva “incompetent of origin” and determined that his actions could be appealed through the appeal.

Former dictator Porfirio Díaz’s coup d’état in 1876 broke with Mexico’s constitutional order. Diaz’s popularity was irresistible, but he needed the legitimacy that only free elections can provide. In 1877, he was elected with an overwhelming majority, and from 1880 to 1884, he lent his throne to his cohort Manuel González, later settling in for six more terms. Diaz always formally respected the electoral process, but he did not have a real rival until Francisco I. Madero appeared on the political scene in 1910.

That year, the country called for a change. The conditions of the elections (including Madero’s imprisonment) made it impossible for the vote to be transparent, and the fraud was evident. But by then, the SCJN had ceased to have powers over electoral justice through the appeal process. This constitutional omission led to a dictatorship because citizens were left literally helpless in the face of an illegitimate power. And the only way out was a revolution. That was the cost Mexico paid for abandoning both the letter and the spirit of the law that the liberals of the nation’s reform had bequeathed. How did it happen?

As Pablo Mijangos pointed out in “The Minimum History of the Supreme Court of Justice of Mexico” in 2019, the person who changed the rules was Guadalajara jurist Ignacio Luis Vallarta. His express objective was the “depoliticization” of the Supreme Court by eliminating both prerogatives. In retrospective, initially the decision seemed sensible: A Supreme Court justice, knowing that his position could elevate him to the presidency, actually placed himself in the front line of the opposition. Vallarta easily obtained the support of Díaz for the constitutional reform.

The second, more debatable case, consisted of separating the court from all decisions of an electoral nature, entrusting them exclusively to the electoral bodies (which, in practice, handed over the process to the executive branch). This reform required a much finer tweaking, since it was necessary to change — via the court itself — the prevailing interpretation of the Constitution. In 1881, thanks to the election of five new justices, Vallarta was able to impose his criteria. In the first sentence handed down after that election, on Aug. 6 of that year, Vallarta determined that only the electoral colleges – -and not the court itself — could determine the legitimacy of elected authorities. Otherwise, he said, the situation constituted an an attack against the division of powers and the sovereignty of the states. With this new interpretation, Mexico’s highest court departed from the liberal spirit of the Restored Republic.

This is how Mexico arrived to 1910. Had the SCJN retained the power to protect citizens against new laws, decrees or actions of  illegitimately elected governments like that of Porfirio Díaz, perhaps the transition of power would have been achieved peacefully, without a revolution.

For the next 70 years, Mexico’s all-powerful Institutional Revolutionary Party (PRI) regime faithfully continued the Porfirian playbook. For more than seven decades, the Supreme Court remained without that power, despite infinite irregularities and serious violations of suffrage.

But by the end of the 20th century, Mexico’s citizens found the institutional and modern formula to carry out the entire electoral process and qualify it. This formula was the creation of the Federal Electoral Institute (today, the National Electoral Institute, or INE) and its sister institution, the Federal Electoral Tribunal (today, the Electoral Tribunal of the Federal Judiciary, or TEPJF). They are, in all their instances and functions, the autonomous electoral referee that has always been lacking in Mexico’s political history.

Now, as the INE and the TEPJF face erosion under the new Plan B electoral reform, Mexico’s Supreme Court has a unique historic opportunity to safeguard, with the Constitution well in hand, the integrity of those key arbitrators.