Separation of Powers in New Democracies: Federalism and the Judicial Power in Mexico Martha Susana Berruecos Garcia Travesi This dissertation is submitted for the degree of Doctor of Philosophy The London School of Economics and Political Science Government Department December 2009 UMI Number: U615716 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U615716 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 TWeses f 135S IJLS'5400 Declaration I declare that this thesis is the result of my own work and includes nothing which is the outcome of the work done in collaboration except where specifically indicated in the text Susana Berruecos Garcia Travesl Date: December 2009 Abstract In the matter of a few decades, the Supreme Court in Mexico has gone from being a passive institution that served the interests of the federal executive to a genuine enforcer of law and the final arbiter in an increasing number of disputes over power and resources between different branches and levels of government. My thesis traces how and why this change happened and analyses the consequences of a more independent and active Court for the processes of federalism and democratisation in Mexico. My research contributes to a growing body of literature on the judicialisation of politics in Mexico. I analyse the ways in which a more genuine separation of powers has begun to take shape in Mexico. Specifically, I look at how a more independent Supreme Court has provided different government powers at the federal, state and municipal levels with a means of defending their respective jurisdictions against competing powers. While I focus on the Supreme Court, my research situates the judiciary within the wider web of government institutions; increased political pluralism has enabled the legislative branch and state and local governments to exercise stronger checks and balances on the federal executive, with attendant consequences for the emboldened Court when it comes to involvement in the policy-making process. At the core of my thesis is an empirical analysis of the Supreme Court’s involvement in federalist issues via the use of constitutional controversies filed before the Court between 1995 and 2005 to resolve federal intragovernmental (between the three branches of government) and intergovernmental (between levels of government) disputes. The analysis operates on two levels: the national, and the subnational via an examination of legal recourses in seven case study states. It also looks at the role of the electoral tribunal in national and local election disputes. A wide variety of political actors are resorting to legal channels in order to resolve political deadlock. The Supreme Court in Mexico has had the last word on issues that range from the generation of electricity to indigenous rights. While my research focuses on Mexico, I compare judicial reform in Mexico with parallel processes in the other three presidential and federal systems in Latin America (Argentina, Brazil and Venezuela). Methodologically, my PhD thesis includes a combination of quantitative and qualitative methods, including structured and semi-structured interviews and 3 extensive documental research in public and private sector archives, as well as national and local newspapers and specialist magazines 4 I declare that this thesis consists of 92,690 words (excluding references). M. Susana Berruecos Garcia Travesl I dedicate this thesis to the memory of my grandmother Abita and my dearest daughter Sofia Jimenez Berruecos. To Miguel, my parents and my sister. 6 TABLE OF CONTENTS GLOSSARY AND ABBREVIATIONS 10 Glossary of legal and political terms 10 Glossary of terms used by the Federal Electoral Tribunal (TEPJF) 10 Abbreviations 11 LIST OF TABLES 14 LIST OF FIGURES 16 ACKNOWLEDGMENTS 17 INTRODUCTION 22 Background to this thesis 22 Hypotheses and key questions 23 Methodology 25 Data gathering 28 Key definitions 31 a). Separation of powers 31 b). Independence of the judiciary 32 c). The Mexican political system: from central government to the municipalities 33 d). The Mexican federal judiciary and its component parts 35 Chapter outlines 38 CHAPTER 1 Democratic Consolidation and Judicial Reform in Latin America: Is the Judiciary the Weakest Link in Latin American Democracies? 41 Literature review: Latin American judicial politics 44 World Bank Literature 50 Democratisation and federalism in Argentina, Brazil and Venezuela 51 Argentina’s judiciary: the legacies of human rights abuses and corruption 52 Carlos Menem (1990-94) and his judicial reform: the ghost of reelection 55 Kirchner (2003-07): attempting to breathe life into the Supreme Court 57 Brazil’s independent judiciary: resistant to reform 59 Brazilian democratisation and judicial reform 61 The 1988 Constitution: enhancing judicial independence 62 Judicial review and the risk of politicisation 63 Brazil under Lula: how to reform an unaccountable judiciary? 65 Venezuela’s judiciary: a battleground for competing political ideologies 67 The World Bank: an underwhelming reform plan 68 Chavez’s administration: a new era for a dimishing Supreme Court 69 Conclusions 72 CHAPTER 2 The Mexican Supreme Court of Justice: From Supine to Activist in a Decade of Judicial Reform (1995-2005) 75 Political pluralism and the institutionalisation of federalism in Mexico 76 The context for reform: political fragmentation, the legislature and the status 79 Judicial independence and the legacy of the hegemonic regime 82 1 Judicial independence and constitutional control 86 Ernesto Zedillo (1994-2000): The judiciary and the 1994 reform 90 The 1994 reforms and constitutional controls 93 Motivations for and responses to the 1994 judicial reform 94 Judicial elections (1995-2009): A revitalised or newly stacked Supreme Court? 100 Zedillo’s third judicial reform: 1999105 Panista administrations, Vicente Fox (2000-06) and Felipe Calderdn (2006-12): signaling future judicial reforms? 106 Public perceptions of the impact of judicial reform: a public relations success 109 Conclusions 113 CHAPTER 3 The Supreme Court as the Lynchpin of New Federalism: An Analysis of the Constitutional Controversies (1995-2005) 115 Open floodgates: Analysis of constitutional controversies (1995-2005) 118 Parties involved in the constitutional controversies 123 Vertical separation of powers: the municipalities as new actors 123 Resolution of constitutional controversies: Founded and unfounded cases 127 Categorisation of constitutional controversies: fiscal federalism 129 Regional analysis: northern vs central region 133 Partisan legal activity: opposition contestation against PRI regime 135 Horizontal separation of powers: disputes between Congress and the executive 139 Other relevant rulings: autonomous constitutional bodies 145 Conclusions 147 CHAPTER 4 Party Politics, Fiscal Devolution and the Separation of Powers: Constitutional Controversies in Seven Case Study States 150 Towards a bipartisan structure: PAN’s gubernatorial victories 154 Baja California: the first Panista victory 154 Chihuahua: the only PRI recovery 158 Nuevo Le6n: the consolidation of the PAN 164 PRI-governed states: a multi-party system structure 168 Tamaulipas 168 Puebla 172 Oaxaca 175 Federal District: the first PR D victory at the state level 181 Conclusions 189 CHAPTER 5 Electoral Justice in Mexico: State Sovereignty and the Role of Mexico’s Electoral Tribunal 191 Antecedents to electoral justice in Mexico 194 Political institutionalisation: towards an electoral jurisdiction 195 The Electoral Tribunal: institutionalisation from the periphery? 197 Zedillo’s administration and the 1996 reforms 199 Evaluating the TEPJF 204 The historic annulment of the gubernatorial elections in Tabasco 208 The sovereignty o f Yucaten 214 8 Recent electoral rulings and the future role of the Supreme Court 220 “Amigos de Fox” and “Pemexgate” 223 2006 presidential election 226 2007 electoral reform 227 Conclusions 228 CONCLUSIONS 231 Fiscal versus political federalism: which is in the driving seat? 232 Horizontal separation of powers: the oxygen of fragmentation 235 The Supreme Court: redrawing the boundaries of its own jurisdiction 236 Fifteen years of judicial reform 238 Implications for theory and further research 240 INTERVIEWS 242 BIBLIOGRAPHY 245 ANNEX I Case-by-case detailed analysis of constitutional controversies, 1995-2005 279 9 GLOSSARY AND ABBREVIATIONS Glossary of legal and political terms Amparo A constitutional legal means of defending individual guarantees established in the constitution against the violation by any government authority. Ayuntamiento Municipal government Causales de improcedencia Recourses for appealing against Supreme Court rulings Constituyente Permanente Body with authority to reform the constitution, the federal legislature and a majority of state legislatures Delegaciones Local councils of the Federal District Distrito Federal Electoral The 300 constituencies or electoral districts into which Mexico is divided for the purpose of federal