Justice in Mexico does not depend on the United States

David Raby writes: Ending corruption and impunity is central to AMLO’s “4T” Transformation of Mexico, and he has set a clear example from the beginning, insisting that “You clean out corruption as you sweep the stairs: starting from the top”. Halving his own presidential salary and those of his entire ministerial team, and urging all high-ranking public officials to do the same, was just the beginning of an ongoing crusade against greed and privilege.

In the same vein he has insisted that no-one is above the law, and not only did he succeed in getting legal approval for a public vote on possible prosecution of corrupt ex-presidents, he has now persuaded a reluctant legislature to pass a constitutional reform eliminating immunity from prosecution for sitting presidents, starting with himself.

AMLO has repeatedly proclaimed his respect for the autonomy of the justice system, starting at the top with the appointment of a highly respected independent legal expert, Alejandro Gertz Manero, as Fiscal General (Attorney-General). But prosecutions for financial and administrative wrongdoing or human rights violations are complex and time-consuming, and many Mexicans are naturally impatient to see results. Moreover, the entire justice system – like the public administration as a whole – needs reform. It is as the President says rather like “pushing an elephant”.

Also crucial to the Transformation project is insistence on sovereignty and self-determination for all nations: a key principle of foreign policy with support for progressive governments in Latin America, and above all in the defence of Mexico’s own sovereignty and freedom from interference.

AMLO and his Foreign Secretary Marcelo Ebrard have sought to cultivate cooperative but sovereign relations in all fields, including justice, with the US (and other relevant partners such as Canada and Spain). It is not surprising that some of the most important suspects wanted on charges of corruption in previous Mexican administrations have been arrested abroad: Genaro García Luna (ex-president Calderón’s head of public security) in New York, Emilio Lozoya (head of PEMEX under ex-president Enrique Peña Nieto) in Spain, and César Duarte (former Governor of Chihuahua) in Florida. But both García Luna and Duarte are US residents and therefore subject to both US and Mexican jurisdiction, while Lozoya was arrested via Interpol on a Mexican warrant and subsequently extradited back to Mexico.

The Cienfuegos Case

Much more controversial, and sensitive for Mexico, was the arrest on October 15th at Los Angeles airport of General (retired) Salvador Cienfuegos, former head of the Mexican army, on narcotics charges. Cienfuegos is not a US resident and apparently has no financial interests there, and arrived with his family as a tourist when he was suddenly arrested.

The initial reaction of many – including quite a few supporters of AMLO and the 4T Transformation – was to assume that the General was guilty and that the Mexican Government would accept the situation. They could not have been more mistaken.

There was no immediate public comment from the Mexican authorities, but in private they immediately expressed to the US Ambassador their discontent at the lack of prior consultation. Then on October 28th Mexico sent a diplomatic note on the subject, and two days later they received a communication from the US Drug Enforcement Agency (DEA) with a 732-page file of legal documents.

Foreign Secretary Ebrard had a further conversation with US Attorney-General William Barr, and in mid-November there was a joint declaration reaffirming existing arrangements on judicial cooperation. On November 18th a US judge in New York (where the General had been taken under custody) agreed to drop charges in order for the accused to be transferred to Mexico for further investigation and possible trial in his own country.

There was of course speculation on both sides of the border that AMLO might be giving in to pressure from the Mexican military and abandoning his pledge to end impunity. But both the President and Ebrard were emphatic in saying that no-one, including the General, is above the law, and that criminal investigation of individual officers does not affect civil-military relations as a whole or the importance of the Armed Forces for the Transformation project. The Mexican Fiscal General will now take charge of the investigation.

The ramifications of this are profound. More than ever, Mexico is proclaiming its judicial sovereignty, and it has scored a notable victory in persuading the US to back down. It would be ingenuous to assume that US prosecutions of Mexican officials, even when based on sound legal grounds as in the García Luna case, have an altruistic motivation.

It is remarkable that the 732-page DEA file on Cienfuegos goes all the way back to 2013, yet no action was taken until now. As pointed out in a trenchant article by John M Ackerman, “Espionage by US authorities against Cienfuegos since 2013 was never intended to struggle against corruption or combat drug trafficking. These two issues are of no concern to the US so long as foreign governments maintain blind obedience to Washington.”¹ Rather such intelligence gathering would be aimed at obtaining compromising information with which to blackmail Mexico.

Ackerman points out that the US could have taken action against Cienfuegos during the presidency of Enrique Peña Nieto who was his boss, but they had no interest in doing so given the corrupt servility of the PRI President to Washington. The decision to arrest the General this year, without any prior warning, was surely aimed at reasserting control over Mexico now that AMLO is taking measures to reclaim sovereignty.

Indeed, the issue of sovereignty has been made very explicit, not only in the successful Mexican demand for the return of Cienfuegos but in other declarations by Ebrard. In response to a journalist’s question about the possible presence of DEA officers in Mexico, the Foreign Secretary declared that any US agent must respect Mexican law and could not therefore bear arms.² This is being followed up by a legislative proposal in the Mexican Congress to regulate the activities of all foreign agents, which has already prompted a critical response from US Attorney-General William Barr who says it will “make cooperation more difficult” and favour organised crime.³ The chequered role of the DEA and other US agencies in favouring organised crime when it suits them, going back at least to the Iran-Contra affair, is not of course considered by Barr.

Domestic Justice Reform

Domestically also AMLO’s quest for justice continues to advance despite many obstacles. Mexican Attorney-General Gertz Manero has now formalised a case against Calderón’s Security Chief García Luna and a request for his extradition has been filed with US authorities, in another indication of Mexico’s determination to take responsibility for its own dirty linen.

Most important, a Constitutional Reform of the Federal Justice System has just been approved by both houses of the Mexican Congress.⁴ The product of two years’ work, it was prepared by justice department officials and then accepted by AMLO who of course had expressed his desire for such a reform ever since his inauguration (or before). Respecting judicial autonomy as far as possible (always a fine line to tread), the President did not interfere in the process other than to indicate that it must promote impartiality and professionalism, combat corruption and nepotism and guarantee equal access to justice.

Arturo Zaldívar, President of the Supreme Court, indicates that the reform will place human rights at the centre of all judicial decisions. The judicial career will be professionalised as never before: all judges must have attended a reformed Judicial College and be appointed by public examination (oposición), and not by politicians as often used to happen. There must also be gender parity in the profession.

Similar measures will improve the legal aid system; in Zaldívar’s words “We will reach all corners of the country to provide legal defence and advice of the highest quality to the marginalised, the poor and abandoned so that the poorest will not be the only ones who lose in the justice system.”

These are noble words; the hard task will be to put them into practice. It will take time and determination, but certainly the new system of judicial training and appointments should make a real difference.

In the meantime AMLO’s commitment to justice is constantly demonstrated by specific decisions announced in his morning press conferences. November 25th was the International Day to Combat Violence Against Women, and AMLO brought along several women directors of relevant programmes to report directly to the public. Leading the team was Home Secretary Olga Sánchez Cordero who spoke passionately about efforts to combat femicide and domestic abuse.⁵ She also pointed out the need to overcome corruption, bureaucratic inertia and legal obscurantism in the justice system: far too many judges relied on legal technicalities which only served to prevent authentic justice.

AMLO declared his agreement with this: the much-proclaimed “Rule of Law” should not mean just formal legality but the “Rule of Justice”. He has taken a clear stand on a number of individual cases of flagrant injustice which have been brought to his attention. A particularly moving case is that of a young man in Sinaloa framed by corrupt authorities on drugs and illegal weapons charges, and jailed for years despite new evidence in his favour and confirmation that he had been tortured; the case was brought to the press conference on December 10th (Human Rights Day) by his mother, a local journalist, who was at her wits’ end. AMLO declared he would immediately grant a pardon if he could; the very next day the young man was released, and the mother, overcome with emotion, came to thank the President.⁶

Of course such individual decisions do not change the system, and most aggrieved parties cannot get to the press conferences. But there are signs that attitudes are changing in the justice system and the entire public administration. As well as the judicial reform already mentioned, there are several initiatives in other departments that have legal and judicial implications. For example, the Fiscal Investigations Unit (UIF by its Spanish initials) of the Finance Ministry, under its outstanding Director Santiago Nieto, has been working tirelessly to expose financial wrongdoing and has greatly increased the number of bank accounts blocked or suspended for fraud or money-laundering;⁷ it works closely with the Fiscalía to bring prosecutions. Similarly the Secretary of Public Administration, Irma Eréndira Sandoval, has been working with great diligence to uncover malpractice by civil servants and refer them to the justice system.

AMLO constantly announces decisions which help to “push the elephant” of government in the right direction. Thus on December 7th he announced the appointment of women to five key positions: Economy Minister, Head of the Bank of Mexico, Federal Treasurer, Director of the National Statistical Office and Director of Merchant Marine.⁸ The wheels of justice, and of public administration, may move slowly, but they are moving, and if AMLO can really change the justice system his Transformation will indeed be a success. Moreover real justice, and real transformation, can only achieved if the country can demonstrate its sovereignty and independence. Relations with the “Colossus of the North” must be based on mutual acceptance and respect.

A History Fraught with Conflict

Mexico’s relationship with the US has been problematic ever since independence in the early 19th century and the war of 1846-48 which deprived it of more than half its territory, from Texas to California and including several other states. A pattern of intimidation and actual military invasion continued down to the early 20th century and contributed to a deep-rooted Mexican distrust, even if good relations prevailed at times.

Recent weeks have witnessed two significant anniversaries: November 20th marked 110 years since the formal beginning of the great Mexican revolution, and December 1st saw the completion of two years since AMLO’s inauguration. Although celebrations were low-key due to Covid-19 restrictions, the President emphasised his achievements in office and also made clear the importance of the revolution for Mexico and Latin America.

AMLO claims that the essential foundations of his 4T Transformation have now been laid. With an impressive array of social programmes based on the principle “For the Good of All, First the Poor”, with a reassertion of the role of the state and the public sector, with the principle of official modesty and frugality (Austeridad Republicana), with a systematic campaign to end corruption and impunity, with investment in a wide range of public works and an independent foreign policy based on national sovereignty and respect for the self-determination of all nations, the achievements are remarkable. Much remains to be done, but AMLO’s impact is clear if only from the growing hysteria of the opposition and the hostility of the media, both national and international.

As for the 1910-20 Mexican revolution, even in Latin America it is little understood, partly because it occurred well before the Cuban and Nicaraguan revolutions or the Chilean Popular Unity, let alone Hugo Chávez in Venezuela and other more recent upheavals. Also the lack of a vanguard party or socialist programme has led to a certain condescension on the part of the orthodox left (who ought to know better since neither Cuba, Nicaragua nor Venezuela followed the prescribed rulebook). But the Mexican revolutionary forces led by Emiliano Zapata, Francisco Villa, Alvaro Obregón and others numbered in the tens of thousands and were “the greatest popular armies in the history of Latin America, bearing dreams and injustices and transformation with their actions”⁹ The result also, while lacking in a number of ways, was a profound renewal of the second most populous country in the region.

The 1910 uprising brought to an end the 34-year dictatorship of Porfirio Díaz, one of the first and greatest examples of neocolonial exploitation of a formally independent nation (since most of Africa and Asia were then actual colonies of European powers). Under Díaz foreign capital – primarily from the US and Britain – took control of mines and plantations on a huge scale and built railways to ship out the products. Indigenous communities lost more land than even in colonial times, rural workers were subjected to debt slavery and urban workers in mines, railways and factories were denied all rights and repressed by force.

A call to arms by a wealthy democratic idealist, Francisco I Madero, would lead to successful mass revolt, and despite much factional conflict and bloodshed Mexico achieved a new progressive Constitution in 1917. The following decades would bring a vast agrarian reform (the first in Latin America), a rural public education programme (also without precedent in the region), an advanced labour code and the 1938 oil nationalisation (described at the time as Mexico’s second independence).

AMLO has repeatedly referred to the Porfiriato – the 34-year Díaz dictatorship – as a precedent for the 36 years of neoliberalism that preceded his own victory in 2018. The corruption, the inequality and the sellout to foreign interests were indeed very similar. US interests were predominant in financing the Díaz regime, and when in 1913 Mexican conservatives organised a brutal coup against the democratic President Madero, US Ambassador Henry Lane Wilson was directly involved in the coup, something of which AMLO has reminded his audience on several occasions.

After this, US intervention in the armed conflicts of the revolution was limited and in no way decisive: they occupied the port of Veracruz for six months in 1914 (paradoxically tending to favour the revolutionaries fighting the coup regime), and in 1916 General Pershing led a futile punitive expedition chasing around the mountains of Chihuahua in retaliation for a raid on a US border town by Pancho Villa.

Washington refrained from further intervention, and the reforming Mexican governments of the 1920s and 1930s were able to negotiate differences without conflict. A key factor in this was that the major socialising reforms (land redistribution, support for labour and the oil expropriation) carried out by the great President Lázaro Cárdenas (1934-40) coincided with the administration of Franklin D Roosevelt with his New Deal and Good Neighbor Policy. FDR was without doubt the most progressive US President of the 20th century and was also preoccupied with the rise of fascism in Europe. Again, AMLO has repeatedly expressed his admiration for Cárdenas, “the president who showed most love for the common people”.

It is no accident that from the 1940s onwards the post-revolutionary Mexican regime became more conservative, more pro-capitalist and more corrupt. The one-party rule of the PRI, based on patronage and astute manipulation of the revolutionary legacy, was tolerated by Washington until the global neoliberal wave initiated with Thatcher and Reagan swept Mexico along into what AMLO calls “Neo-Porfirismo”, the modern equivalent of the privatising, plutocratic and corrupt Díaz dictatorship.

To achieve justice – social, economic and legal – after 1910 required a decade of armed struggle in which hundreds of thousands died in Mexico’s third great transformation (the first being Independence from Spain and the second, the Liberal Reform of the 1850s-1860s). AMLO’s aim is to achieve justice once again with a Fourth Transformation, but one which is to be peaceful and democratic: an extraordinary challenge requiring exceptional political skill, mass popular support and a relationship with Washington based on respect, restraint, and sovereignty.

David L Raby is a writer, political activist and retired academic living in Norwich (UK). Professor Emeritus in Latin American History, University of Toronto, and former Senior Fellow in Latin American History, University of Liverpool. Former City Councillor in Norwich. Executive member, Venezuela Solidarity Campaign; Chair, Norwich-El Viejo (Nicaragua) Twinning Link. He can be reached at [email protected] and on Twitter @DLRaby.