Mexico 2024: The Battle for the Constitution

Outgoing Mexican president López Obrador has proposed a wide-ranging constitutional reform package that would impact over a third of the current constitution. Lacking the necessary congressional support to pass these amendments, however, the initiative seems instead designed to influence the forthcoming general elections and cement López Obrador's political legacy. The potential enactment of these proposals poses grave concerns about democratic erosion, judicial independence, and the future role of oversight and accountability institutions in Mexico – writes Julio Ríos-Figueroa

On 5 February 2024, the Mexican Constitution celebrated its 107th Anniversary. That day, President López Obrador submitted to Congress an ambitious package of constitutional reforms that would amend 51 out of 136 Articles, or 37 per cent of the Constitution. This amendment package is a mixed bag that includes aspirational reforms (such as the right to free, integrated, and universal health services), innocuous reforms (such as the prohibition of animal mistreatment) and a series of power-concentrating reforms (such as the elimination of proportional representation in the electoral system, electing judges by popular vote, and the elimination of autonomous constitutional bodies).

With just seven months remaining in his non-renewable six-year presidential term, López Obrador and his party, Movement of National Regeneration (MoReNa), lack the two-thirds supermajority in both chambers of Congress to unilaterally and expeditiously pass these reforms. The reform package therefore serves as a kind of political legacy from López Obrador. However, it is also a vehicle for the President to influence the upcoming general elections on 2 June 2024. He aims to frame the election as a referendum on his political project, urging a large voter turnout to secure a Congressional supermajority. This would facilitate the enactment of his initiatives, potentially constraining not only the campaign of MoReNa’s presidential candidate, who has endorsed this constitutional reform package, but also her future government. In his final battle, López Obrador has launched a “constitutional bombardment”, as Professor Sadursky has called the reforms that eroded democracy in Poland, in an effort to take over the Constitution itself.

López Obrador's legacy: completing the “Fourth Transformation”

López Obrador and MoReNa won by a landslide in a legitimate and fair election in 2018 after effectively catalyzing the widespread demands for social and economic inclusion, as well as the generalized discontent with political corruption. However, shortly after the election, López Obrador embraced a polarizing discourse distinguishing between “The People” who support his government and the “corrupt elites” who oppose it. López Obrador sees himself as the epic leader of a “Fourth Transformation” in Mexico’s history, after independence from Spain, the 19th-century victory of the Liberals over the Conservatives, and the Mexican Revolution. Each of these critical junctures crystallized in a new constitution: 1824, 1857, and the current one enacted in 1917.

López Obrador sees himself as the epic leader of a “Fourth Transformation” in Mexico’s history . . . 

The reform package submitted by López Obrador aims to leave his mark on the Constitution. In particular, the reforms that touch on education, health, pensions, salaries, housing, and Indigenous peoples aim to “recover […] the social revolutionary origins” of the 1917 Constitution. These reforms are mostly aspirational, lacking clear strategies for financing and sustaining the otherwise desirable social policies described within them. Electorally, however, these social reforms could prove efficacious as they invite voters to forgo a retrospective evaluation of López Obrador’s government by focusing instead on the unfinished goals of the “Fourth Transformation”. This might be conceived as a clever maneuver, though López Obrador himself fought for decades against this type of incumbent involvement in the elections, which goes against electoral laws as it comes with spending enormous amounts of public money for the campaign of the official candidate.

Restructuring Power

The most controversial aspect of the amendment package involves restructuring the political system’s institutional architecture. In essence, taken together, the reforms to the electoral system, armed forces, judiciary, bureaucracy, and autonomous organs result in a significant transfer of functions and power to the executive branch and the majority party.

According to López Obrador, the aim of the electoral reform is to reduce the excessive expenses of a “golden bureaucracy”. The proposed reform reduces the size of parliament, eliminating 200 deputies and 64 senators elected by proportional representation, favoring the incumbent majority party. The reform would also eliminate local offices of the Electoral Institute, responsible for organizing elections and counting the votes. Since the reform does not increase personnel or resources for the remaining national office, it undermines the capacity of the Electoral Institute.  Moreover, the reform also undermines the autonomy of the Electoral Institute as it includes the dismissal of the current executive board and its replacement by popular vote. The electoral reform also lowers the threshold for a binding result in a presidential recall from 40 to 30 per cent of the electoral list, which broadly coincides with López Obrador’s loyal electoral base, potentially turning the recall into a mechanism to influence his successor.

The popular election of judges and electoral officials disguises a political intervention in the judiciary and the electoral institutions.

The judiciary, according to López Obrador, is “rotten and corrupt”; thus, his amendment package also includes a judicial overhaul that proposes the dismissal of all sitting federal judges in district and circuit federal courts, as well as those in the Supreme Court (approximately 1600 judges), and the direct election of new judges at all levels. The popular election of judges and electoral officials disguises a political intervention in the judiciary and the electoral institutions. For each position, voters would be presented with a slate of up to 30 candidates: up to ten nominated by a two-thirds majority in Congress (five from each chamber), up to ten by the Supreme Court, and the remaining ten by the Executive. The majority party and the executive would have a disproportional role in the selection of candidates, and overwhelmed citizens most likely would follow partisan cues if they turn out to vote. The people would also directly vote for the members of a body for judicial administration that would replace the current Judicial Council, and for a newly established Judicial Disciplinary Tribunal in charge of overseeing and sanctioning judges including dismissing them for “going against the public interest” (proposed Article 100).

Another reform proposes to dissolve seven autonomous constitutional bodies, including the National Institute for Transparency, Access to Information, and Data Protection and the Federal Economic Competition Commission. While these bodies would be abolished, their functions would be transferred to agencies of the executive branch such as the Secretary of the Economy and the Secretary of the Interior. Last, but by no means least, the reforms target the recently created National Guard, proposing the transfer of this supposedly civilian body in charge of public security to the Secretary of Defense under the control of the Armed Forces. This change would further militarize public security and lessen accountability, building on previous transfers of other civilian functions to the Armed Forces during López Obrador’s administration, including control over customs, ports, airports, medicine distribution, and the construction and management of massive infrastructure projects like new airports and trains.

Democratic erosion

López Obrador has previously proposed some of the amendments included in this package during his administration, but they failed to gain supermajority support in Congress. He subsequently passed ordinary laws or executive decrees mirroring the content of the failed amendments, which inevitably triggered challenges before the Supreme Court. Given the institutional suicide implicit in the government’s strategy – effectively negating the Court’s role as guarantor of the Constitution – a majority of the Court (8 out of 11) has so far resisted and declared these laws and decrees unconstitutional. This has triggered further aggressions by López Obrador who considers the Supreme Court and the judiciary as an obstacle to his “Transformation”, and thus now proposes a package of amendments that includes a wholesale purge and packing of the entire judiciary.

López Obrador’s final battle takes to a new level the state-led weakening of the political institutions that sustain democracy, which started as soon as he assumed the presidency.

In his last six months in office, López Obrador has launched a campaign to mobilize support for his political project even at the cost of dismantling constraints on the abuse of political power. His goal is to take over the constituent power to make constitutional changes at will. López Obrador’s final battle, therefore, takes to a new level the state-led weakening of the political institutions that sustain democracy (what Professor Przeworski describes as democratic erosion), which started as soon as he assumed the presidency.

If the upcoming general elections on 2 June 2024 are free and fair, it is highly unlikely that López Obrador and MoReNa can win the constitution-making two-thirds legislative supermajority, especially in the Senate. Yet, the fairness of these elections is already in question due to the extensive use of incumbent power and public funds to favor the official candidate. How free will the elections be from violence and organized crime, and from active intervention by political authorities before, during, and after the electoral process?

Unfortunately, these are all open questions as Mexico faces its fifth general election under democracy. In all previous elections, the Mexican voters, electoral officials, Armed Forces, political parties, and the outgoing President have been mostly faithful to the rules of the game and ensured the peaceful transmission of power following the electoral results. This time, Mexico enters the electoral campaign with a polarized electorate, an under-staffed and politically impugned Electoral Tribunal, a weakened Electoral Institute, a judiciary facing daily attacks and insults from the President and his supporters, an embattled media, an increasingly empowered and politicized Armed Forces, and a rise in the violent influence of organized crime through vast regions of the country.

Julio Ríos-Figueroa is Professor of Law at ITAM in Mexico City. He is the author, among other publications, of the book ‘Constitutional Courts as Mediators: Armed Conflict, Civil-Military Relations, and the Rule of Law in Latin America’ – Cambridge University Press. His works are available at: https://rios-figueroa.com/ 

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Suggested citation: Julio Ríos-Figueroa, ‘Mexico 2024: The Battle for the Constitution?’, ConstitutionNet, International IDEA, 29 February 2024, https://constitutionnet.org/news/voices/mexico-2024-battle-constitution

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