The consultation to prosecute former Mexican presidents puts the spotlight on the Supreme Court

Three former presidents of Mexico: Enrique Peña Nieto, Carlos Salinas and Felipe CalderónGetty Images

Andrés Manuel López Obrador once again makes use of participatory democracy to advance the agenda of the so-called Fourth Transformation.

The popular consultation for citizens to decide whether to try five former presidents [Salinas, Zedillo, Fox, Calderón and Peña Nieto], all living Mexican ex-presidents except for Luis Echeverría, is the most recent example.

It is not the first time that the president has opted for this relatively new mechanism to convey to the people a political conviction taken previously.

Thus, the new Mexico City airport started by Enrique Peña Nieto and a US beer plant in the State of Baja California were canceled, and a thermoelectric plant in the State of Morelos and the Maya Train, one of the infrastructure projects for the current government.

This query goes further.

He questions the independence of the justice system since nothing prevents former presidents from being tried if they committed crimes.

The question posed by López Obrador and his legal adviser, Julio Scherer Ibarra, must clear a great stumbling block before becoming the north star on the way to the elections.

The Popular Consultation Law, approved in 2014 during the term of Peña Nieto, ensures that the Supreme Court of Justice (SCJN) must guarantee the constitutionality of the matter of consultation.

This process has begun and the Constitutional Court has 20 days to issue its position.

The specialists consider that the consultation is unfeasible in the judicial field.

"This is an openly unconstitutional proposal," considers Javier Martín Reyes, associate professor in the Legal Studies division of the Center for Economic Research and Teaching (CIDE).

The Constitution expressly prohibits the restriction of human rights and their guarantees from being consulted.

"Leaving the decision of whether to investigate and prosecute the former presidents in the hands of the majority would violate the rights of the victims and the right to due process of those indicated," adds the lawyer.

Minister Luis María Aguilar will be responsible for writing the draft judgment.

The robed presided over the judicial power until January 2019, when the judiciary undertook a turn in parallel to the López Obrador government with Judge Arturo Zaldívar as head.

Aguilar, a career judge, remained in the new balance of the court as one of the magistrates critical of the current Administration.

His office has been responsible for various projects that have served as a dam for the policies promoted by the Executive.

In June, Aguilar admitted a controversy promoted by the Federal Economic Competition Commission (Cofece) and two entities governed by the opposition that momentarily suspends a decree that summarizes López Obrador's energy policy, as it sought to limit the issuance of permits for wind power plants. and solar.

In 2019, Aguilar also spoke out against the remuneration law that cut the salaries of public officials.

The measure was one of the first adopted by López Obrador as soon as he came to power and established that no public servant could earn more than him, setting his salary at 108,000 pesos per month.

The rule was followed by a shower of thousands of protections that sought to shield themselves from the measure by conserving onerous diets.

The citizen consultation that López Obrador seeks has a high political and electoral component.

The question formulated by the Executive would be submitted to the citizens for consideration on Sunday, June 6, 2021, the same date on which the country will go to the polls in the largest elections in its history.

That day, the 500 seats in the Chamber of Deputies will be renewed and 15 of the 32 states will elect a new leader.

Nine months later, López Obrador's party looks like the clear favorite heading to those elections.

The trial of the ex-presidents may become the main theme of the campaign for the mid-term and would reinforce the current president in the field in which he moves best, that of political conflict and confrontation, especially in the absence of opposition leaders .

Ximena Medellín, a law doctor from UNAM, believes that the consultation process has been untidy.

"The result can be very unfortunate because it wears out a tool that has great value but is being applied incorrectly and at the wrong time," says the academic, also from CIDE.

The specialist believes that the question asked by the presidency is problematic.

This seeks to question the punishment of alleged crimes committed "before, during and after" the negotiations since 1988. The wording erases the legal debate on the limits to public responsibilities and crimes.

"The question doesn't make any sense," he adds.

Minister Aguilar must now operate legally with great political pressure on his shoulders, even more so after the president, during the announcement of the request, argued that there are gray areas in the legal framework to do so, insinuating that justice would not lead to carry out any proceedings against a former president. The matter must be resolved with a delicate reform of the substantive judicial power. The meaning of Aguilar's sentence will be public in the coming days. However, the minister made it clear in 2014, when the SCJN ruled on the popular consultations, that it is very conservative when it comes to endorsing what issues citizens can get into. At that time, the ministers narrowed down the scope of the consultations. Energy and economic issues, including the increase in the minimum wage, were left off the table when they were declared unconstitutional. "It would be very rare for Aguilar, faced with the same restrictions, now to come out with a project dramatically different from what failed in 2014," says Javier Martín Reyes. And this opens a new political unknown for 2021. Can the Government carry out a consultation after having been declared unconstitutional by the Court?