The Significance of Mexico’s Upcoming Referendum on Lifting Former Presidents’ Immunity from Prosecution

Mexican President Andrés Manuel López Obrador (commonly known as AMLO) has repeatedly assailed Mexico’s former presidents as corrupt. However, despite his attacks, AMLO has said that he does not want to pursue criminal actions against his predecessors. Therefore, AMLO raised eyebrows this past September when he called for a referendum that asks citizens to vote on the question whether “the relevant authorities should, in accordance with the applicable laws and procedures, investigate and if appropriate punish, the presumed crimes committed by former presidents,” specifically naming former presidents Enrique Peña Nieto, Carlos Salinas de Gortari, Ernesto Zedillo, Vicente Fox, and Felipe Calderón. Opponents challenged the referendum as unconstitutional, on the grounds that Mexico’s Constitution prohibits popular consultations on matters involving guarantees like the presumption of innocence and due process. However, Mexico’s Supreme Court narrowly held, by a 6-5 vote, that the referendum would be constitutional, but voted 8-3 to modify it. The Court altered the language by deleting the reference to the ex-presidents and the phrase “presumed crimes” so that the referendum now reads: “Do you agree or not that the relevant authorities should, in accordance with the constitution and legal framework, undertake a process of clearing up political decisions taken in previous years by politicians, with an aim to guaranteeing justice and the rights of possible victims?” Mexico’s lower house of Congress approved the revised referendum and set the date of the vote for August 2021. AMLO, however, wants the referendum to be held in June 2021, during Mexico’s midterm elections.

Seizing on the vagueness of the referendum and AMLO’s hostility towards his predecessors, AMLO’s opponents have attacked him for attempting to undermine the judicial system and seek political revenge by having a public vote on whether to prosecute and convict former presidents. Other critics have argued the referendum, which is both vaguely worded and non-binding, will not have any real impact, and amounts to little more than political virtue signaling intended to boost AMLO’s party in the upcoming midterm elections.

To a certain extent, I agree with the latter criticism. AMLO’s primary motivation in promoting this referendum is likely political: He wants to (re)create a positive association between his party and the fight against corruption. It’s probably not a coincidence that the push for the referendum comes at a time when one of Mexico’s biggest corruption scandals is unfolding, with former President Peña Nieto accused of taking millions of dollars in bribes from the Brazilian construction company Odebrecht. It’s probably also not a coincidence that AMLO wants to hold the referendum vote on the same day as the 2021 midterm elections. Despite having won power in a landslide in 2018, AMLO and his party are currently in political trouble. Mexico continues to face economic stagnation and high crime, and AMLO’s administration has failed to control the coronavirus. As for AMLO’s promise to rid his country of corruption—a major component of his presidential campaign—he hasn’t made much progress here either. AMLO’s anticorruption credentials have been further tarnished by a leaked video showing AMLO’s brother receiving packages of money from a government functionary that were used to strengthen AMLO’s political party ahead of the 2018 election. It seems that AMLO is attempting to divert attention from his political and policy failures by introducing a referendum that will focus attention on the corruption of prior administrations.

But just because there is a political motivation behind the referendum does not mean that the referendum won’t have a meaningful impact. It likely will, whichever way it comes out.

The referendum is significant because it empowers the general public to weigh in on Mexico’s decades-old tradition of letting former presidents pursue quiet retirements, free from any fear of prosecution for crimes they may have committed in office. To be clear, there is no law that protects former presidents from prosecutions, and indeed former presidents’ de facto immunity seems inconsistent with the general legal obligation of Mexico’s General Prosecutor to investigate whenever there are grounds to believe a crime has been committed. Nonetheless, this de facto immunity has long been the unwritten policy. The referendum puts that policy up for a vote. (Critics, advancing a variant of the constitutional argument they raised in the Supreme Court, have argued that the referendum is inappropriate because the question whether to bring charges against a particular defendant should not be put to a popular vote. Admittedly, the history of the referendum and its confusing wording make it susceptible to that interpretation, but the better reading is that the referendum asks the public whether the government should do away with former presidents’ de facto immunity from prosecution, not whether they should, in fact, be prosecuted.) To be sure, the referendum is non-binding, but the results are likely to be politically significant:

  • A “no” vote on this referendum would likely foreclose—politically, if not legally—prosecutions of the former presidents, at least while AMLO is in power. Though the referendum is not legally binding, AMLO would face significant public and political backlash if he disregarded the results of a referendum that he himself proposed. Furthermore, a “no” vote would be a signal from the populace that they want AMLO to stop focusing on past corruption and turn his attention to preventing it going forward. As noted above, this is the posture that AMLO himself initially adopted, and for which he was sharply criticized by many anticorruption advocates, including on this blog. A “no” vote would validate AMLO’s original approach; this would provide him with some insulation from the anticorruption community’s criticisms, and would also constrain him from reversing course.
  • A “yes” vote on the referendum does not necessarily mean there will be any prosecutions against the former presidents. As noted above, the referendum could be—and probably should be—interpreted simply as asking whether to eliminate the de facto immunity that former presidents have traditionally enjoyed. A “yes” vote would nonetheless make it more possible (again, politically rather than legally) to bring such a prosecution, if the independent National Prosecutor’s Office finds sufficient evidence to support one. Whether there will turn out to be sufficient grounds for any such prosecutions remains an open question. Some of the allegations AMLO levied against his predecessors are so old that they are unlikely to be supported by credible evidence, and other allegations involve poor policy decisions rather than crimes. That said, other allegations are more serious. It will be substantially harder for AMLO, or future Mexican presidents or General Prosecutors, to defend the policy of “turning the page” by declining to investigate former presidents if a majority of Mexican citizens reject that policy in a popular referendum.

            Thus, while critics argue that this referendum nothing but empty political grandstanding, this is not quite right. True, AMLO’s motives in proposing the referendum may have been political, perhaps crassly so. But the results of the referendum will still be important. Depending on how the vote comes out, Mexico could either be doing away with a tradition that protected the political elites from the consequences of their corrupt actions, or the Mexican citizens could be declaring that they prefer that their leaders focus on future rather than dwelling on the past. Either outcome will be significant for Mexican politics going forward.

1 thought on “The Significance of Mexico’s Upcoming Referendum on Lifting Former Presidents’ Immunity from Prosecution

  1. Amazing post! I am just thinking that becase the wording is so confusing, the outcome of the referendum might be as well. It that is the case (as I think it is) I fear that the fact that the results are also subject to interpretation would be a tool used by those politicians in charge to do as they please and not necessarily as the population agreed. Furthermore, not even the population would know what their answer mean if the question is not 100% clear, which could lead to unhappiness and disapproval.

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