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Mexico Supreme Court invalidates National Guard transfer to army

The ruling represents a major roadblock to President López Obrador’s agenda to militarize the corps that he originally created to be a civilian security force.

MEXICO CITY (CN) — In a brutal blow to the agenda of Mexico’s president, the country’s Supreme Court ruled Tuesday that last year's transfer of the civilian National Guard to the military was unconstitutional.

The transfer was approved this past September via a legislative reform to the 2019 law that created the National Guard. President Andrés Manuel López Obrador initially tried to push the transfer through with a constitutional reform, but he did not have the necessary support from Congress. 

The project received the minimum eight votes necessary to rule a law unconstitutional. López Obrador appointees Loretta Ortiz Ahlf and Yasmín Esquivel Mossa — currently in hot water for having plagiarized both her undergraduate and doctoral theses — voted against the initiative, as did former Chief Justice Arturo Zaldívar. 

The National Guard must now return operative and administrative control to the Secretariat of Security and Civilian Protection.

Although López Obrador and other advocates of the move reject the term "militarization," opponents of his security strategy hailed the court’s decision as a step in the right direction toward putting checks on this and other actions of the current federal administration. 

“The Constitution clearly says that the National Guard is a civil institution,” said María Elena Morera, executive director of the watchdog group Causa En Común. “This ruling slaps a hand on the table, telling the president and his party that we still have separation of powers in Mexico and they can’t go over the Constitution to do whatever they feel like.”

Legal scholars and lawyers connected to the issue also hailed the ruling as a victory for institutionalism in the country.

“This ruling is proof that despite a bloc of three justices who decide according to the whims of the government, there are eight others who on occasion can act as a counterweight and invalidate these unconstitutional laws of an arbitrary — or even authoritarian — nature,” said legal scholar Javier Martín Reyes. 

The most unorthodox arguments for keeping the National Guard under the control of the Secretariat of National Defense (Sedena) came from former Chief Justice Zaldívar, who attempted to argue Monday that the military is actually a civilian entity.

Calling his critics “cut-rate constitutional law experts,” Zaldívar tried to clarify his statement on Tuesday, arguing that the army and Sedena — the cabinet department that administers it — are separate entities and that he never meant to say that the army is a civilian security force.  

Reyes called the argument “absurd” and “a simulation.” 

Troops from Mexico's National Guard pose for photos with visitors to Mexico City's new airport on opening day on March 21, 2022. (Cody Copeland/Courthouse News)

Attorney Joan Ochoa Sada, who represents a coalition of civil society groups that have filed over 70 legal challenges to the transfer, also denounced Zaldívar’s argument, saying he was “taken aback” to hear him say it.

“It was more political than objective,” he said in a phone interview. 

Zaldívar apparently did not see it that way. He insisted on Tuesday that his peers refrain from allowing their personal beliefs to influence their decisions.

“Our job is not, nor can it be, to vote in favor or against ‘militarization,’ whatever that even means,” he said Tuesday. “Our job is to analyze in the concrete cases presented to us if the option the democratic legislator took conforms to the constitutional framework independently of our personal preferences toward the decision the legislator made.”

Members of the National Guard who were not on board with the move to Sedena in the first place welcomed the ruling and called its reversal inevitable. 

“Independent of my personal disagreement with the transfer, it was obvious this would happen, because of how poorly Sedena functions,” said Miguel Ángel, a navy sailor who was moved to the National Guard when it was created, then to the army when it was transferred to Sedena. 

He spoke to Courthouse News this past October on condition that his last name be withheld for safety reasons. He and another former sailor-turned-National Guard soldier denounced corruption, low pay and poor quality of services after being moved to the army. 

Miguel Ángel expressed optimism Tuesday, saying the ruling represents the first step on his path back to the naval career he originally chose.

Despite Tuesday’s ruling, another front remains for opponents to López Obrador’s militarization: the use of the military in public safety operations until 2028, which passed in the Senate this past October. 

Morera, of Causa En Común, pointed to the military’s new roles in customs, air traffic control, airport security, tourism and more. The organization has detected over 240 military positions in civil institutions across the country. 

“This government has taken militarization not only to public safety institutions at the federal level, but also at the local level,” she said. “On one side we have public safety militarized, but also many institutions that have nothing to do with security.” 

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