Ernesto Zedillo was president of Mexico from 1994 to 2000. He is the director of the Yale Center for the Study of Globalization and is on the Berggruen Institute’s Board of Directors.
Until now, Ernesto Zedillo has not spoken much publicly about Mexican politics since leaving office in 2000 after his six years as president. During that term, his reforms laid the groundwork for the first transfer of power through fair elections in 71 years from the one-party rule by his own Institutional Revolutionary Party. His reforms also instituted changes in the Mexican Constitution to assure the independence and insulation of the judiciary from political interference.
Those reforms have now been rolled back by the populist President Andrés Manuel López Obrador, who leaves office at the end of September. His successor from the same Morena party, Claudia Sheinbaum, has pledged full support for Lopez Obrador’s policies.
In this essay, adapted from a talk given to the International Bar Association, Zedillo recounts the march toward what he calls “true democracy” and how an autocratic-minded leader unraveled and reversed it. The story of modern Mexico is a lesson for us all about how the quality of democracy lies in the weeds; how checks and balances are designed to separate the executive, legislative and judicial branches and guarantee fair political competition through the independence of non-partisan electoral authorities. — Nathan Gardels, Noema Editor-in-Chief
Mexico’s Congress has just approved a set of constitutional reforms, ratified by most of its state legislatures, that will destroy the judicial branch and, with it, bury Mexican democracy and what remains of the federal republic’s fragile rule of law.
The perpetrators of this atrocity have made false and perverse reference to the motivation, content and results of the reforms I undertook when I became president in 1994.
My first major decision in office was an initiative to reform the country’s Constitution to strengthen the independence and capabilities of the Mexican Judiciary. That reform — along with others to assure fair elections — arose from my conviction that Mexico’s difficulty in satisfying the unmet demands of our people for economic, social and political progress was fundamentally rooted in our historic failure to build a true democracy.
The powers that be in Mexico today have reversed course, subverting the independence of the key judicial and electoral institutions established in recent decades as the foundation of that true democracy.
To grasp the scope of what has happened, it is critical to understand the historical context of how we struggled long and hard to establish democracy in Mexico only to have those achievements dismantled at the whims of the power-hungry.
The Long Road To Democracy in Mexico
Since the end of the war phase of the Mexican Revolution in the 1910s, our country was one in which, unlike many others in Latin America and the world, the executive and legislative powers were periodically renewed through regular, multiparty, albeit limited, elections.
The Constitution stipulated democracy as our political regime. However, formal and informal rules made it so that political parties other than my own Institutional Revolutionary Party, essentially had no chance of winning those periodic elections for a long time. At national and local government levels, in both the executive and legislative branches, the same party repeatedly prevailed and was responsible for organizing and validating future elections. The only golden rule was that the party leader could not be re-elected, as the presidential term was limited to a single six-year term.
Undoubtedly, the political stability of one-party rule produced significant economic and social progress for several decades and created important and useful institutions. But it also came at a high cost: the unchecked, unbalanced and arbitrary exercise of governmental power.
The executive’s actions were not monitored or counterbalanced by Congress; the latter’s role was assumed to be to support the executive unconditionally. It allowed for the abusive use of authority during especially times of great challenge and resulted in the formulation of misguided policies that caused severe economic crises and political repression.
In short, my country’s political system, despite the provisions of the 1917 Constitution, did not meet the essential requirements of a full and functional democracy for a long time.
Mexico did not have a true democracy because the government had the option to exercise power arbitrarily and erroneously with total legal and political impunity, due to the absence of adequate checks and balances in Congress and the judiciary.
It was not a true democracy because, by action and omission, the rule of law deliberately remained weak, which not only generated insecurity among citizens and violations of their fundamental rights but also normalized corruption. Democracy and justice are mutually dependent; one cannot exist without the other.
Of course, true justice requires several key conditions, including adequate laws, their impartial application, and universal and equal access to the judicial system. These conditions are impossible without a professional, impartial and independent judiciary, headed by a Supreme Court with those same attributes and with the additional power to declare laws and government actions unconstitutional when they are so.
The 1917 Constitution established an independent and impartial judiciary, but a succession of reforms soon ignored that ideal. Ultimately, these reforms generally sought to expand the president’s ability to influence and even control the Supreme Court, so that the executive branch could carry out its actions unhindered.
The executive branch exerted multiple means of control over the judiciary — from the appointment of ministers to the control of their budget. For most of the 20th century, the judiciary was a de facto part of Mexico’s political system where one party dominated, essentially serving the leadership in power.
The Supreme Court frequently failed to protect individual rights, approved government policies and actions that lacked any constitutional basis, and limited citizens’ access to justice.
“Mexico’s Congress has just approved a set of constitutional reforms … that will destroy the judicial branch &, with it, bury Mexican democracy & what remains of the federal republic’s fragile rule of law.”
Since my nomination as a candidate for the presidency, throughout my electoral campaign and upon taking office as president, I committed myself to undertaking the reforms necessary to make Mexico a true democracy with its indispensable companion: an independent judiciary.
Five days after I took office, I sent a constitutional reform initiative to Congress. I personally went to both houses of Congress to respectfully encourage legislators from all parties to seriously consider the initiative, as well as to begin working together toward significant electoral reform.
In my meetings with them, the premise was always dialogue with all parties, and never imposition. The 1994 reform meant a break with Mexico’s semi-authoritarian past, which had been facilitated by a Court essentially subordinate to the president.
Correcting this anti-democratic anomaly was the main objective of this initiative. It significantly and sensibly strengthened the powers of the judiciary. The Supreme Court acquired a much stronger power to decide on the constitutionality of acts of authority and laws and gained the ability, with a supermajority, to repeal all or part of the law or act under its control. It was endowed with the power to decide on legal controversies between federal and state governments as well as municipalities. It was empowered to decide on cases of the constitutionality of laws or resolutions brought forward by a minority in either chamber of Congress or state legislatures. The reform not only strengthened federalism but also its ability to protect the rights of political minorities.
The reform created the Federal Judicial Council, which managed the primary judicial budget, appointed lower courts, determined rigorous criteria of merit and performance, and established oversight mechanisms. As a result, requirements for raising the professional standards of judicial members were determined and traditional laxity in politically motivated appointments and retirements was curbed.
To have a compact, competent and renewable Supreme Court, the 1994 reform adjusted its size from 26 to 11 judges, exactly as provided for in the 1917 Constitution, and the life term was changed to 15 years.
Adapting to a smaller Supreme Court made it difficult to determine who among the life-term judges would remain in position. To address this fairly, the reform encouraged the early retirement of all members of the Supreme Court. This also allowed an immediate return to something more akin to the original rule of the 1917 Constitution and required the Senate to select new judges from lists of three judicial candidates submitted by the executive. These judges had to meet well-specified standards of unprecedented rigor. In short, the objective was precisely to reverse the practice of the judiciary adapting to the executive.
Since I intended to act as carefully as possible in the composition of the lists that would be submitted to the Senate, these were based on the proposals made by bar associations, academic institutions of law and distinguished jurists. It was a source of special satisfaction for me that I had no previous professional, political or personal relationship with any of the 11 people elected in 1995 by the Senate to be ministers of the Supreme Court. That Supreme Court gave irrefutable proof of its independence during my administration by ruling against the executive that I headed on crucial matters. These decisions were fully respected by my administration.
Electoral Reform
Once judicial reform was enacted, I called on all political parties to begin negotiations for electoral reform to make Mexico a full and functioning democracy. The country had been moving in that direction since political reforms in 1977 and others over the years, though none had achieved an ideal result. The electoral rules and procedures had evolved to the point of ensuring a more accurate vote count. For this reason, unlike in previous cases, my biggest rival did not challenge the legality of my election.
However, the conditions for electoral competition remained unequal. I did not hesitate to publicly state that my election had been legal, but not fair. That was the way to signal my firm intention to negotiate seriously and with a high-minded approach on all sides.
The negotiations that followed were quite difficult for many reasons. Not only were the issues complex and distrust between the parties had to be overcome, but they had to be carried out amid a terrible financial crisis that hit the country at the beginning of the new government’s administration. The economic crisis had to be dealt with by painful but necessary — and, obviously, unpopular — actions, all of which created a political environment that was not conducive to negotiation.
“Democracy & justice are mutually dependent; one cannot exist without the other.”
It was clear to me that the tough decisions I had to make would encourage opportunistic and demagogic politicians to profit politically from the situation. I didn’t care. My duty was not to be popular but to do what was necessary to ensure Mexico would not sink into long-term economic stagnation and social decline. Our work was successful, and over the next five years, the country’s economy grew at an annual average of 5%, with social policies able to directly combat poverty. This was done without political conditions or electoral clientelism since such conditions result in undignified and humiliating treatment for less favored groups.
Despite the difficulties, after 18 months of arduous efforts, all parties agreed on a major constitutional reform that radically changed electoral institutions, rules and procedures.
As a result, the Federal Electoral Institute (IFE) became truly autonomous from the executive. Among many important results, the reform established precise conditions for the financing and access to the media of political parties and their candidates to guarantee fairness in electoral competition. It also stipulated the principle that the electoral authority must have sufficient budgetary resources to meet the highest standards in human resources, equipment and other necessary capacities to fulfill its responsibility of protecting the citizens’ vote. The protection of this right was reinforced by the creation of an autonomous Federal Electoral Tribunal within the judicial branch to resolve all electoral controversies while giving the Supreme Court the power to decide on the constitutionality of electoral laws at both the federal and state levels.
Thanks to the 1996 reform, Mexico City citizens gained the right to democratically elect their mayor, rather than having the position appointed by the president, as had long been the case. Both the current and next president were democratically elected in this way to lead the Mexico City government.
The reform established the conditions for Mexico to finally have competitive, impartial and fair elections.
That reform, together with the reform of the judiciary in 1994, provided the conditions for a democracy with a true division of powers and a presidency effectively balanced by the other branches of government. This marked the end of the autocratic and abusive presidency and the long-awaited arrival of a truly democratic presidency.
The End Of One-Party Rule
With the institutions, rules and procedures created by both electoral and judicial reforms, elections to the federal Congress were held in 1997. My party lost the absolute majority it had enjoyed for almost seven decades and a new era of “divided” but, certainly, democratic government began. Moreover, the 2000 election produced — for the first time in modern Mexican history — a president from an opposition party.
Although these reforms made Mexico a true democracy, I had no illusions that they would be perfect or that changes would never be necessary. The experience of their implementation and, of course, changes in the country’s internal and external circumstances would make it advisable and necessary, over time, to introduce adjustments to what was established in the 1994 and 1996 reforms, as well as to seek additional institutional advances.
I was confident, however, that any new reform would strengthen our democracy into a solid and irreversible democracy, and that, under any circumstances, the legality, competence and independence of both the electoral institutions and the judiciary would be respected as cornerstones of the system.
Return to the Past: The President Violates Respect For the Law
Unfortunately, this key condition has been widely, systematically and aggressively violated by the party currently in power and its leader, the president of Mexico.
On the one hand, the independence and institutional capacity of the now-called National Electoral Institute (INE), the public agency responsible for organizing federal elections, has been relentlessly attacked. The first line of this attack has been to slander, insult and threaten both the institution and the people elected to ensure that the INE fulfills its constitutional mission.
The institution suffered an arbitrary and significant reduction in its budget, which is necessary for its proper functioning.
Another crucial affront to the independent authority of the INE has been the open and defiant disregard for its rules and procedures on what the government cannot do before and during electoral campaigns. These violations were committed primarily by the president and high-level members of his government and his party. This is not my conjecture; the Electoral Tribunal of the Federal Judiciary determined that the executive violated the principles of impartiality, neutrality and fairness during recent federal and state elections by favoring ruling-party candidates.
“We struggled long & hard to establish democracy in Mexico only to have those achievements dismantled at the whims of the power-hungry.”
The INE had long ago warned the executive that its lack of respect for these principles in its rhetoric and concrete government actions was illegal. Its response has always been derision and contempt of the electoral authority.
Clientelism has always been considered an abusive, illegitimate and unethical way of co-opting citizens to support the “official” party as it was practiced over many years of the 20thcentury. It is tragic that once in power, the current official party has embraced clientelism on an immense and dishonorable scale, in clear violation of both the spirit and the letter of the reforms underlying Mexico as a democratic country.
At this point, there is no doubt that this government intends to eliminate the INE as an independent, impartial and professional entity with the capacity and authority to organize truly free and fair elections.
This sinister purpose was explicit in the bills sent by the president to Congress. These bills, once approved by the majority controlled by the executive, were declared unconstitutional by the Supreme Court. To overcome this obstacle, a constitutional change was enacted with the same objective: to overthrow the independent electoral authority and replace it with a sham authority designed to be under government control.
Unfortunately, the serious damage to the impartiality of the INE and the Electoral Tribunal did not have to wait for this constitutional change. The opportunity to undermine their independence arose with the appointments made to fill vacancies left by the end of the mandate of councilors and magistrates. Those appointed lacked the impartiality essential to the fair application of the law.
Evidence of this reprehensible condition was demonstrated in the recent rulings by the INE and the Electoral Tribunal, which awarded the ruling party and its coalition partners about 73% of the seats in the Chamber of Deputies — Mexico’s lower house of Congress — despite having obtained 52% of the seats in the Chamber.
This absurd overrepresentation, which flagrantly violates the Mexican Constitution, was falsely justified by a twisted, ill-intentioned interpretation of the rules for the allocation of seats to coalitions. The ruling party was gifted with a qualified majority (more than two-thirds) in the Chamber of Deputies, which gave it the power to approve constitutional changes and act practically without limitations.
As with electoral institutions, the executive has relentlessly questioned the decisions of judges and ministers when they have not aligned with its preferences and insulted the judiciary as an institution as well as individual ministers. Contrary to what is established in the Constitution and the laws, the executive has maneuvered to fill vacancies in the Supreme Court with people who hardly meet the indispensable requirements of independence, professionalism and ethical behavior.
Despite these attacks, the Court had managed, until now, to preserve a majority to act with independence and integrity, simply applying the Constitution to prevent abuses by other branches of the State.
The president’s frustration at not having a submissive Supreme Court has turned bitter and vengeful. He has sought the destruction of the independence and integrity of the judiciary so that it functions in service of his administration.
Earlier this year, paradoxically and on the verge of ridicule, on the anniversary of the establishment of the 1917 Constitution, an initiative was formally proposed with numerous amendments to the Constitution. The changes ultimately led to the devastation of the judiciary and the abolition of other autonomous state institutions very important for transparency, accountability and the country’s development. These seemingly doomed institutions were created to limit the arbitrary use of executive authority; another essential counterweight to democracy will be lost.
Jurists, attorneys, professional associations, legislators of various affiliations, members of the federal and state judicial branches, and civil society organizations thoroughly and respectfully analyzed the presidential proposal for reform of the judicial branch in multiple forums. They did so under the premise, shared by all, that institutions can and need to be improved, particularly in Mexico, where the rule of law and citizen security have been in critical condition for many years.
The experts who participated in these forums examined the coherence between the diagnosis of the problems, the stated objectives to address them, and the institutional changes proposed in the president’s initiative. On repeated occasions, they concluded that the proposal suffers from serious inconsistencies. Far from solving the serious problems of justice and security that Mexico faces, the proposed modifications will aggravate them.
“The president has sought the destruction of the independence & integrity of the judiciary so that it functions in service of his administration.”
Contrary to the president’s claims, his proposal does nothing to improve the state’s ability to seek and deliver justice. It is useless because this reform does not comply with what should exist in every democracy: equality before the law, protection of rights, impartiality, access to justice, responsiveness, transparency, due process and proportionality.
The changes would violate virtually all these principles. The reform has nothing to do with the search for justice since it does not address the institutional deficiencies that have caused the current crisis in the Mexican state’s ability to protect people from crime, violence, abuse and corrupt authorities.
Jurists and experts have formulated the institutional changes and additional resources — human and material — necessary to make the fundamental right to justice effective. None of these indispensable elements were considered in the president’s initiative. His intention is simply to destroy the judiciary as an independent and professional entity and transform it into a servant of those who hold and concentrate political power.
This perverse objective is evident in the initiative itself, as a review of its key components will demonstrate. Let me briefly summarize them.
With the enactment of the constitutional reforms, the entire judiciary — judges, magistrates and Supreme Court ministers — will be removed from office within the next three years. Their positions will be filled by persons elected by popular vote.
Candidates will emerge from lists that, for practical purposes, are determined by the executive branch and Congress, both of which are controlled by the same political party.
The required experience and professional qualifications will be minimal. Not only will the preselection be political, but the machinery of the official party will be mobilized for judicial election campaigns — as it was in recent electoral campaigns — to elect the most docile individuals rather than the most competent.
Naturally, other actors who want judges to suit their own ends, including organized crime, will have ample opportunity to influence the results through their traditional means: money or violence. This election procedure will be replicated in the state judiciaries.
In essence, there is a significant risk that members of the judiciary will not owe their position to the people who vote in the judicial elections, since those elections will be a grotesque farce, but that these members will owe their place in the judicial system to their political patrons who put them on the electoral lists, as well as to other questionable promoters who could easily be criminals.
It is therefore likely that there will be judges and magistrates who will obey not the law, but the dominant political power. This risk will be amplified because the new regime will also have the means to punish the “disobedient.”
The Federal Judicial Council will be abolished, even though it was created to guarantee the independence of the internal governance of the judiciary and to create and manage the professional career of judges moving forward. Its disappearance will destroy three decades of institutional construction in this critical area for democracy and the rule of law.
Two new bodies will be created instead.
One of them is the Judicial Administration Body, in charge of assigning and controlling the resources of the Judicial Branch, as well as managing what little remains of the careers of judges going forward. Beyond some irrelevant nuances, a Court already controlled by the ruling party, with executive and legislative branches coming from the same party, will appoint their own representatives as heads of this body.
Nothing is mentioned about the requirements of professionalism and integrity that the members of the Judicial Administration would have to follow, but their willingness to use the budget process and promotions to influence the decisions of judges will be the determining factor. In addition, there will be another safeguard to ensure the Judicial Administration abides by the wishes of the executive, since the latter will be the channel for submitting the draft budget of the judicial branch to the consideration of the Chamber of Deputies, which is controlled by the official party. If the Judicial Administration does not obey, the Chamber can always use the budget as a tool of punishment.
The second newly created body is the Judicial Disciplinary Tribunal, whose name reveals that it is not intended to supervise the internal governance of the judiciary, but to ensure that judges are disciplined to obey their political masters.
“Unfortunately, the ambition for power betrayed the principles of the 1857 Constitution and transformed the reform into a long dictatorship.”
The establishment of such a disciplinary tribunal blatantly violates the basic universal principles of the rule of law and human rights. One of the entity’s capacities includes the ability to impose fixed deadlines on judges to decide on criminal cases and cases of fraud and tax evasion. If judges do not meet these deadlines, they will be brought before the tribunal for investigation. The tribunal will have full authority to find judges guilty and sanction them. There is no right to appeal. In other words, there is no right to due process.
It is not difficult to imagine that the tribunal will be used by political powers to punish judges who do not quickly pass sentences against people brought to court on false grounds because they are opponents of the regime rather than real criminals. Add to this the fact that, with the reform, the law will considerably increase the authority of prosecutors to imprison people — it is said “preemptively” — before an investigation is completed. The government will be fully empowered to combat any dissent, enabling all essential principles of the rule of law to be trampled on.
If the purposes, objectives and measures of the judicial reform project are perverse, the legislative process for its approval was a great fraud to the Constitution, the laws and the internal regimes of the chambers of Congress.
The Chamber of Deputies of the new legislature began its session on September 1; 80% of the deputies were there for the first time. Without sufficient time to study or discuss the reform initiative, a qualified majority of the ruling party approved it on September 4.
In the Senate, the ruling party was initially one vote short of a qualified majority. According to credible sources, the ruling party obscenely obtained the missing vote, offering an opposition senator impunity for himself and his family members, who are accused of serious crimes. Equally obscene was the two-day period in which the state legislatures with a ruling party majority ratified what had been approved by Congress without adhering to the procedures established by law. The approval of this judicial reform, pushed through by the ruling party, is a historic felony.
The Anti-Patriots Of The 21st Century
When Mexicans achieved independence in 1821, we finally had the opportunity to become a nation of free men and women, a sovereign nation that would seek the progress and justice dreamed of by the fathers of our country, Hidalgo and Morelos.
The realization of their dream was frustrated by despots and criminal bosses who did not love Mexico; they only wanted power for themselves. The anti-patriots of that time, with their evil, transformed our splendid and promising independence into misery for the people, and into the loss of sovereignty and a large part of our territory.
Many years of fratricidal struggles had to pass, impoverishing Mexico before our liberal heroes could defeat the reactionaries and carry out the reform written into the Constitution of 1857 that gave us the foundations to build a free and democratic republic. In addition, the liberals, with the great President Benito Juárez at the head, defeated a foreign invasion supported by some complicit Mexicans, who wanted to impose a foreign prince as ruler.
Unfortunately, the ambition for power betrayed the principles of the 1857 Constitution and transformed the reform into a long dictatorship. In 1910, the dictatorship was defeated by Francisco I. Madero and allies, who returned Mexico back to a democracy. However, anti-patriots were quick to conspire and assassinate him, transforming Madero’s democracy into a criminal dictatorship.
That dictatorship was defeated by the Mexican Revolution, which having yielded fruits of economic and social progress without precedent in our history, also delayed too much in fulfilling Madero’s ideal of democracy with which the revolution had been born. Thanks to several generations of Mexicans, at the end of the 20th century we were finally able to say with pride that we belonged to a nation with true democracy.
But now, these new anti-patriots, who call themselves the “fourth transformation,” are trying to turn us toward tyranny. They are not talking about another succession akin to Mexico’s other three major transformations: Independence (1810–1821), the Reform War (1858–1861) and the Mexican Revolution (1910–1917).
What they have wrought, instead, are felonies that have transformed those extraordinary and promising episodes of our history into a tragedy for the nation. Their so-called fourth transformation seeks to transform our democracy into tyranny.
