Benefiting Cartels by Law

Welcome to Mexico Matters, the CSIS podcast about how events occurring in Mexico can impact and more importantly, matter in the United States. I am Mariana Campero, non-resident senior associate of the Americas program at CSIS and the former CEO of the Mexican Council on Foreign Relations, COMEXI. In the last few months, President Clown, their shamebound, made sure that the constitutional reform proposed by her predecessor, AMLO, passed the Morena Control Congress. This reform effectively killed the independence of all local, state, and federal judges as they now have to go through elections as any other politician. In fact, only a few weeks ago, Mexico held its first judicial elections, which had more than 7,000 candidates for about 2,000 judicial positions. To speak with us about the implications of such changes in the fight against organized crime, and in Mexico's attractiveness as an investment destination, that it is truly my pleasure to welcome José Ramón Cosío, former member of Mexico Supreme Court at Distinguished Academic and a writer of many books on the rule of law. Minister, welcome to Mexico Matters. Let me just start by asking you, what was the objective of this reform? I mean, why do you think AMLO pushed his weight in order to make it happen? Yes, first of all, thank you very much for your invitation. It's really a pleasure to be here with you, Mariana, an old friend of mine. Well, I think that the principal purpose of this judicial reform is the idea of the former President López Obrador to take the whole control of the Mexican judiciary, not only the federal judiciary, but the local judiciary. We read the amendment, the procedures in the Congress, the final decisions, and of course the election, like a whole. We can understand that President López Obrador have this purpose. Some people say that the judicial branch or the judges in Mexico in general are corrupt, but the president never identified who is corrupt. The president said that the judges have an idea to the elites, the Mexican elites, and that's not true. We have a lot of decision, who of course was dictated in favor of the elites, but we have a lot of decision in favor of the ordinary people. For that reason, I understand that the main purpose is this one, to take a whole control of the judiciary. Morena and the political party of the President López Obrador have in this moment a control of the Congress, of course the Presidents of the Republic, of many local powers, and in this very moment, they have to the control of the judicial branch. I think this is the principal purpose of the reform, the amendments, and of course the election. Yes, it is easy to understand why Amló and his Morena party wanted full control of the judiciary, since it was actually the only branch, not Congress, who actually stopped some of his initiatives and sort of makes absolute sense, Amló didn't like that and therefore he wanted to remove all obstacles or restraints. Minister, as a former member of the Supreme Court, what concerns you the most about these reforms? My main concern is exactly what you said, that the former president, the Morena party and Claudia Sheinban, actual president of Mexico, don't have any restraint to the ideas, to political ideas, the realization of a program. In many, many cases the Mexican judges stop their arbitrary decision from López Obrador or the members of the Congress. And I think this one of the most important concerns from López Obrador is an expression we can't do whatever we want, because the judicial power is aligned, is a defense from the human right, from the division of power, from the federalist system in Mexico. But with the appropriation of the judicial power, like you said Mariana, the López Obrador, the political party, Morena, whatever, don't have that kind of restraint. This is my main concern. And for that reason, I suppose that many judges will be very ideological and very corrupt. Another problem that no many people talk about it is the influence of the narco-gangs in Mexico with the new judges. I think this is a very bad moment in Mexico. In fact, I was reading a few days ago that the lawyer of El Chapo was one of the elections, so she's going to be a judge now. The main case. But in another many cases, the organization, the civil organization, the College of Lawyers, many institutions, Technológico de Monterrey and many other institutions can confirm that the gangs put money and put some people in the judicial positions in the election. And that is a great concern. What happens if you, like a gang, have your own judges? No, this is a very, very hard moment. It's not only the political influence, it's not only the lawyers, the corrupt lawyers' influence, it's the gangs who have his own judges from the near future. I mean, talking about reducing the power of the cartels, we're certainly going in the wrong direction with this. And the other problem is that we will expect, of course it's not my hope, but I can expect hard violence in the judicial branch, because if the cartel A have a judge, well, what is the incentive to the cartel B to kill the judges from the other, and another cartel? I think the violence in Mexico will be very, very hard in the next years, for that reason. Or what happens if the cartel paid the campaign and the new judge doesn't respond to the investment that the cartels make? It's incredible. If these reforms actually increase violence and they, at the same time, destroy the independence of the judicial system, how could Mexico be attractive to investors? I mean, how will I know as an investor that the contract that I sign will actually be respected? Yes, of course. I think this is another problem, Mariana. Why? Because I don't know if, and anyone knows that in this very moment, the judges, the new judges, justices, whatever, adopt an ideological position. In some cases, an actual justices in the Mexican Supreme Court say that they can't resolve certain cases or they can't study certain cases, because the resolution can affect the financial system from Mariana. The justice batteries say the last week that they don't was in the session of the second chamber of the Supreme Court, because she tried to broke the courtroom from the chamber because the chamber will resolve a case related with a huge money in a tax case. Well, if this kind of ideological position remain, well, we can expect that many judges in the near future resolve not in terms of what the law said or the president demand, but in the sense of ideological position related with Morena government, Lopez Obrador position or Claudia Sheinbaum presidency. I think this is a very, very hard and another hard moment in Mexico. Maybe not all the judges can resolve in the same way in this ideological, in this political sense, but it's important to say that in Mexico, the judicial reform create a new disciplinary court and this disciplinary court with five members, all of them very close to Lopez Obrador, Claudia Sheinbaum, to Lopez Obrador have the power to remove the judges who take a certain decision in the way that will be contrary to the Morena philosophy or Morena program or whatever. I think this is an another problem and in that sense, what happened with the investors? The investors are foreigners, the investors are members of huge companies or big companies or whatever and for that reason, we will expect that this kind of judges and this kind of decision will be again the investment and again the foreign countries or again the big companies because it's an ideological position. Minister, how could companies protect themselves? Do we have to go to arbitrage or what would be one of the tools that they could use against this? Well, in certain cases, in big cases, the companies have the arbitration solutions and another companies in Mexico are moving to the mediation. arbitration is more easy, less expensive arbitration and I think that's the kind of solution that they will start in the near future. The other one is to have a huge compliance in the sense that they make a previous arrangement to try to avoid the actions from the public administration, to avoid, yes. I think this is but indeed the space to confront this kind of ideological way is very, very short. Are you concerned about any of this reform violating USMCA, particularly in the light that we're going to have a review in 2026? Does any of this reform go against USMCA per se or how do you see that? Yes, I make the same difference. Not per se, but it's possible that the application, the realization, the dynamics of the new actions will affect the Mexican compromises in this treaty. I think in this moment, if you read the judicial reform against the treaty, I don't identify per se, like you very correctly say, I don't identify a problem. But what happened if you, in your same words, a company that was in Mexico in a certain moment suffered a certain kind of decision, a procedure and decision that affect the investment because the judges resolved in a way absolutely contrary or in a political or ideological way. I think that in this moment, the companies will start the procedures of investment arbitration, this kind of mechanism that they have to protect the investment in my country. Did the requirements needed to become a judge change with this reform? Well, Mexico adopts a system similar to the system in the United States. In the case of the Supreme Court, the Mexican president choose three names and put these three names in the hands of the Senate to the vote of this chamber in a high quorum that will be in two thirds of all members of the Senate. It's similar, the Constitution delegates in the president and in the Senate the identification of the people who have certain competences, certain attitudes, certain kind of conduct. Well, in other cases in the lower level, we adopt a system very similar to the continental European system. That's it. The people need to have an experience, need to have a low degree of course, a certain time in the judicial activity, whatever, and they make a lot of exams in different moments with different people, and this is the way. All of this was broken, but this judicial reform, why? Because you need to have a political power or a gang power that put in the way to be a judge. Because they need to campaign, right? You need a campaign. You need to offer something to your potential constituency. You need to say things that will be attractive to your potential constituency. For example, the other day I listened a candidate that said, "Well, if I will be a judge, I will give you water, water in your neighborhood, water. It's incredible. Is it not the competent or I try to the boss, to the garbage, we'll be recollect every day. It's very interesting. It's a good proposition. And you're becoming politicians, right? Politicians. And the second problem is what will you do when you are in the judicial position? You resolve the cases because you have a relation with your constituency, or you resolve the cases related with the law, with the Congress, with the law, the courts, say this is a very, very complicated moment. Minister, the public perception of Mexico judiciary was really never great. In fact, when Amlo started pushing for this reform, he said that all judges were corrupt and the public sort of agree, or at least they didn't do, and there was not a lot of pushback. Do you think that if the new judges now have a bias against the elite, that this public perception will actually change? Well, yes, like many others, a judicial branch in the war, of course, the Mexican judicial system have bad judges, ignorant judges, corrupt judges, this is true. But I think that the solution is identify each case, each person, and put a sanction or remove from the position. This is the general solution in the world. You say that this or that judge is a corrupt, well, open an investigation, identify what kind of conduct he or she do, whatever. But this is not the solution from López Obrado, the solution is that everyone in the judicial power, federal and local, is corrupt, that the judicial power is related with the most important, most powerful elites in Mexico, and for that reason, all of them need to be removed or nominated by an election. I think in this moment, the people in Mexico in general don't understand what happened with their judicial reform, with the electoral procedure. Why? Because it's very confusing. And one example of that confusion is the low, the very low participation in the election. Correct. It was only 13%, right? Only 13%. And in that percent, 3% of the people went to the booth, right? To the booth. Yes. And cancelled. They're valid. They're valid. Yes. Put some bad words or put a different kind of sign, whatever. And the effective participation is 10%, I think. And in the next future, I suppose that the new judges will be very slow in the resolution because you know that many other activities, you need a practice to resolve. The lawyers, the judges and the people who work with all of them don't have experience. The decision maybe will be ideological, political. I think that in a certain moment, one year, for example, I think the people say, "Well, the judicial power in Mexico is not better," that the promises to the reform are not very good promises. And any one of them, I suppose, will be complete. It's very difficult. Yeah. No, no. I mean, it just doesn't make any sense. Minister, is there any other country in the world that elects all of its judicial system or Mexico is just doing this experiment? No. Any other country in the world, in the human history, we never have this kind of solution. Solution is a paradox. Anyone. You know, in the United States, some judges in certain states will elect, but they have the jury and the jury have a verdict. The judge don't resolve in an autonomous way. They have the verdict of the judge. And the other country is Bolivia. And the Bolivian people, the Bolivian politician, the Bolivian lawyer, said all the time that is not a good solution. They speak against the judicial reform. I listened. Some lawyers, some members of the mass, the political party from former president Evo Morelle, said it's a very bad solution. Why? Because the judges will be very corrupt or very corrupt. The people have a very low participation. The legitimacy of the courts are very low. And I think it's a bad solution. But you have all the reason, Mariana, that the solution is an experiment. And I suppose that is a failure experiment. What can be done in the meantime? I mean, I assume it's going to take a while for this experiment to run its course and to prove it to everybody that it was actually not a solution to end corruption. I try to write a lot of articles. It's my personal position. I open an observatory in the Tecnologico de Monterrey to try to follow the decision of the judges, the Supreme Court, in the next month. But your program is very important. I think that in the United States, the people who may take decision don't understand the harm that the reform do from the Mexican democracy and, of course, to not only the American investment, the relation with other countries. I have a huge concern about what is the relation between this judicial reform and the geopolitics. This is a very interesting point. What happens if some countries that are against the United States have his own judges in Mexico? What happens? I don't know. It's only a hypothesis. But I think it's very, very important. That is actually a very interesting point that I had not thought about at all. What if Venezuela or Russia or anyone, for that matter, starts influencing the election of Mexican judges against another country or another company in particular or someone in particular? Wow. Well, I think that many people don't understand the problem that we confront in this very moment. I would say that many people by the idea of López Obrador and Presidenta Sheinbaum that the reform is good because all the judges, again, are corrupt people, all of them are related with elites, the economic or financial elite. I think it's very important to try to explain and explain and, of course, put the whole issues of the reform and the consequences of the reform with light. I think that your program, Mariana, is not only a compliment, have a part of compliment. It's very, very important because many people need to understand what are the real effects of the reform from the democracy, from the geopolitical relations, from the investment, from the life of the ordinary people in my country in this moment. I think that this reform is and will be a degradation of many, many procedures, many subjects in the Mexican life. Of course, Mexico have in this moment a huge problem with the violence. My question is, this reform is related or is in the way to improve the security in Mexico or, on the other hand, is absolutely against these procedures. I think we need to expose and expose not only the judicial reform, not only the electoral procedures, but the results in the near future. It appears that we changed these laws to benefit cartels, certainly to strengthen the office of the presidency, and that we're running the risks that most of our judges will rule based on ideology instead of based on the rule of law. We're certainly not creating the conditions to attract investments, which Mexico absolutely needs in order to grow. Who knows, maybe in the upcoming 2026 USMCA review, we will get some pushback from the United States and from other international investors. One would hope. Exactly. And it's not in a sense that we need to, to the United States came to Mexico and resolve our own problems. We need to understand, and it's very, very important, that the whole context that is good from the investment of the United States is the same good context from the life in Mexico. A life with rules, it's a life with independent courts. I don't know if I can explain this position. I am not afraid only about the investment of the United States. This is not the main problem. The main problem is that the investment from the United States and another country, European or whatever, are related with a context. And the most important issue is try to save, is try to create or recreate this context. What happens if a company lost the investment? It's the same problem that a Mexican citizen, an ordinary citizen lost their own investment. It's exactly the same, it's not only save the big companies and lost the rest of the world. No, no, this is not my problem. The problem is a general problem about the rule of law, about the independent courtes, about the compliment of law, etc. Without the rule of law, there's nothing that could actually function in a country. And certainly it's not going to function in Mexico. Minister, I cannot thank you enough for this very interesting conversation. And I hope you come back and maybe in a year from now to see what has happened. Yes, of course. I say thank you for this invitation and I expect that we can with a certain periodicity to replay because I think there will be very, very important things to talk with you in these very interesting sessions. Thank you so much. 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