Mandatory pretrial detention case reveals subsurface politics on both sides of debate

MEXICO CITY (CN) — Mexico’s president and his Morena party will likely benefit from a final vote on mandatory pretrial detention in the Supreme Court planned for Thursday, according to political analysts.

While four of the court’s 11 justices Tuesday expressed their intentions to vote for the remand mechanism’s unconstitutionality after two days of debate, Chief Justice Arturo Zaldívar postponed the final vote until Thursday.

A supermajority of eight votes is required to declare a law or regulation unconstitutional.

President Andrés Manuel López Obrador has vehemently opposed the initiative, claiming it would open up Mexico’s judiciary to even more corruption than already plagues it.

If the court were to eliminate the constitutionally mandated mechanism, it would be “interfering in the sphere of another branch of government,” he said at his morning press conference Tuesday.

“There must be thousands,” he said when asked if he knew how many innocent people are locked up in Mexico without convictions. He attributed their detentions to “corruption.”

Statistics show that mandatory pretrial detention disproportionately affects the poorest in Mexican society, the very sector the president claims to champion from the bully pulpit of his daily morning press conferences.

López Obrador’s support for its continuation is another brick in the wall of evidence that reveals the disconnect between his rhetoric and political agenda, according to political analysts interviewed by Courthouse News.

“The law is being used politically by López Obrador,” said José Antonio Crespo, a researcher at the Mexico City-based government think tank CIDE. 

Mandatory pretrial detention serves as a weapon with which the president can intimidate or punish his political opponents, Crespo said, and the narrative he maintains publicly of being a moral advocate for the poor is merely rhetoric. 

“He doesn’t care about corruption, impunity or the rule of law, he cares about the politics, bending people to his will and personal revenge,” said Crespo, who added that the president appears willing to sacrifice the tens of thousands of presumedly innocent poor currently awaiting trial in Mexican prisons.

For many of those — over 90,000 as of June — for whom legal representation is economically out of reach, those trials may never come. While Article 19 of Mexico’s Constitution, which establishes mandatory pretrial detention, limits the measure to two years, more than 12% have been in prison longer than that, according to federal statistics.

López Obrador Tuesday said that the Congress should “ideally” be the branch to reform mandatory pretrial detention in the Constitution.

However, the number of people incarcerated without convictions has increased during López Obrador’s term thanks to a 2019 reform proposed by Morena legislators that expanded the catalog of crimes meriting mandatory pretrial detention.

“He’s not worried about the poor, he has sacrificed them in every aspect,” said Crespo.

The proof for Crespo is in the policy. He pointed to the elimination of Seguro Popular, a state-run health care program that covered over 50 million of Mexico’s poorest, and its replacement in January 2020 with the Health Institute for Well-being (INSABI).

Seguro Popular was created by one of López Obrador’s political rivals, former President Vicente Fox.

The INSABI failed to cover the millions of Mexicans in poverty who need health care. In August, López Obrador created the Mexican Social Security Institute for Well-being program in an attempt to pick up the slack.

“He didn’t care that he left many people out of that social safety net,” said Crespo. “It has never mattered to him. The facts show that he doesn’t really care about them.”

Crespo added that López Obrador’s social programs come with a catch.

Beneficiaries can find themselves electorally beholden to the Morena party, threatened with the loss of those benefits if they fail to vote the way the party wants them to, as seen in its internal leadership elections in July.

A former cabinet member from a previous presidential administration echoed Crespo’s analysis of López Obrador’s politics, saying that they are by and large regressive, rather than liberal. 

Speaking to Courthouse News on the condition of anonymity, he said the president’s plan to eliminate corruption and alleviate poverty known as the Fourth Transformation is only narratively associated with Mexico’s poor and that its true objectives are political control and the establishment of a new hegemonic authoritarian system with López Obrador at the helm.

Mandatory pretrial detention is a powerful tool for intimidation in that process, the analysts said.

“You can accuse someone of corruption, and it doesn’t matter if they are guilty or not, because you’ve put them in jail for several years, and that intimidates people,” said Crespo. 

The case before the Supreme Court not only reveals the true political ambitions of the executive branch, but also those of the head of the judiciary, according to legal experts. Chief Justice Zaldívar has espoused the cause since he visited a women's prison in Mexico City in May.

“Reforming mandatory pretrial detention is a very good thing, because it’s true that the situation in Mexico’s prisons is brutal and that there are many people illegally deprived of their liberty in them, and it’s true that public defenders offices are weak,” said Javier Martín Reyes, a law professor at Mexico’s National Autonomous University.

“But why wait three years and a half years to do it? Unfortunately, it’s a good policy inspired by the worst reasons,” he continued. “It's Zaldívar constructing his future political career.”

Unlike his U.S. counterparts the chief justice has a robust media presence, with accounts on Facebook, Twitter, Instagram, YouTube and TikTok, and holds a regular monthly press conference, in addition to those he hosts for special events or announcements. 

Reyes called Zaldívar's media presence and his strong public stances on controversial social issues like mandatory pretrial detention evidence of the “López Obrador-ization” of the chief justice.

“He is trying to present himself as a politician in the style of López Obrador: approaching people, being worried about the vulnerable and less fortunate, and he wants to look like a genuine politician,” he said.

Juan Manuel Ureiro, a senior researcher at the Mexico City-based public policy consultancy Integralia, said that Zaldívar’s media presence and the focus of the court’s communications on the persona of its chief justice put the branch’s autonomy at risk.

“The personalization of court communications isn’t good for the image of its independence,” he said. “I wouldn’t expect this of a chief justice, and I can’t remember someone in the position doing something similar in the past.”

Zaldívar declined multiple requests from Courthouse News for interview or comment.

Thus, a confirmed vote on Thursday for the constitutionality of mandatory pretrial detention would appear to deliver exactly what the heads of the executive and judicial branches desire: the continued implement of intimidation for the former and more political clout for the latter. 

Courthouse News correspondent Cody Copeland is based in Mexico City.

Follow @copycopeland

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