Ricardo Pascoe Pierce
Rulers and politicians worldwide are on the warpath against their legal systems and judicial procedures. In general, it can be said that they consider that the judges and magistrates of their countries restrict their omnipotence when they want to bypass the laws to impose their will. Often, they even go against their countries’ courts while disqualifying electoral rules and those responsible for enforcing them.
As the number of rulers with authoritarian imprints worldwide grows and as the validity and standing of democratic regimes are increasingly questioned, the pressure to remove obstacles to the unrestricted exercise of power increases with time. The number of candidates for dictatorships is growing faster than the emergence of candidates committed to the liberal and democratic cause.
It is inscribed in the DNA of every aspiring autocrat that the judicial system is, by definition, a power dedicated to restraining the ruler’s actions, decisions, and public policy directions. And, according to the autocratic version, judges, when they are not malleable or purchasable, are a real problem to good governance.
The cases of Israel and Mexico are the ones that have recently sounded the loudest due to the conflict between the Executive and Judicial Branches of their respective countries. From different rhetoric but with the same objectives in common, the leaders of both countries have dedicated significant effort and much time to discrediting the highest courts of their respective states. In Israel, the debate is about laws approved by the parliament, and in Mexico, the frame of reference is the Constitution and the laws that emanate from it.
Netanyahu’s and Lopez Obrador’s main argument is that the courts act illegally. They argue that the judges assume that they can overrule the decisions and actions of the President or Prime Minister regarding their constitutional validity or the legal framework approved in the Knesset. The President and the Prime Minister question the judges’ actions and denounce them for acting “outside the law.” They even accuse the judges of assuming the role of legislators, correcting or, in fact, rejecting measures adopted by the Legislative Branch of each nation. They say that the actions of judges are “illegal” or “unconstitutional”, depending on the country.
In continuing their attack on judges and ministers, both rulers propose redesigning their composition and offering a new definition of their functions. By different means, both seek the possibility of colonizing their courts, especially the Supreme Court, to change their internal correlation of forces. In all cases, restructuring the court is to allow the ruler to control the judges’ decisions and prevent them from questioning the legality of acts of the Executive Branch.
There are also specificities among them that make them different, but they ultimately coincide with the strategic objective of controlling the courts. Netanyahu wants to avoid being impeached for corruption and, therefore, seeks to annul the court’s power to remove the President and the Prime Minister. His war against the court has that goal in mind. His pretense met with so much resistance in Israeli society that he had to start refining his proposal. Still, he refused to abandon the idea of colonizing the court and deeply divided Israeli society, as one sector saw in Netanyahu’s project the beginning of an authoritarian drift. This division undoubtedly encouraged Hamas to consider that the time was ripe to attack the Israeli “fortress”. Apparently, the internal division in Israel provoked by Netanyahu’s attempt to reform the judicial system was the trigger for Hamas’s attack.
In the case of Lopez Obrador, he has put forward a demagogic resource: the election of court ministers by popular vote. It was his strategy to seize control of court decisions for decades after he left power. What is his intention to achieve that control? That neither he nor his family will be prosecuted for corruption in the future. Finally, and in different ways, Netanyahu and Lopez Obrador are concerned about corruption prosecutions against them.
However, both rulers have failed to control the courts…until now. Due in part to his court coup intent, Netanyahu got his country into a war that is discrediting it as never before in the eyes of the international community.
And Lopez Obrador has imposed three female ministers on the court who represent the worst of courtesanship and intellectual and professional degradation of the court that has ever been seen. The questioning of the independence of the Judiciary demeans Mexico before the international community and calls into question its reliability as a partner in the CUSMA/USMCA/T-MEC, the main instrument of its economy, without which Mexico would be in a severe crisis.
The argumentative parallelism between Netanyahu and López Obrador is mind-boggling, although the democratic tradition in Israel is much stronger than in Mexico, where institutions are tottering under the pressure of anti-democratic aggression.
But, thinking back, one remembers Trump, Bolsonaro, Cristina Fernandez, Bukele, and Evo Morales arguing the same thing at the time. The fact that all of them have systematically confronted judges in their countries is not a mere coincidence. It is the symptom of a much deeper malaise. It is an expression of the exasperation of societies when elected governments do not solve problems, and the authorities organize routes for anti-democratic expression and want to pass the bill to the judges.
We are in times of essential definitions and facing a severe and current authoritarian threat. The proximity of this threat is evident when the rulers want to get rid of legal limits by attacking judges.
Mexico is facing the attempt of the ruling political bureaucracy to impose a sui generis civil-military-narco authoritarian regime, whose devastating effects will mean the disappearance of the Republic as we know it.
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