Part II
How does LawFare work? The international legal community has summarized its tactics as follows: a) manipulation of the legal system; b) giving the appearance of legality to political persecution; c) using meritless lawsuits, without substance, and frivolous accusations; d) abusing the law to harm and delegitimize an adversary; e) promoting legal action to discredit the adversary; f) attempting to influence public opinion; g) using the law to obtain negative or oppressive publicity; h) judicialization of politics by using the law as a tool to connect means and political ends; i) promoting popular disillusionment; j) criticizing those who use international law and judicial processes to file lawsuits against the state; k) using the law as a means to constrain and punish the adversary; and l) accusing the enemy’s actions of being immoral and illegal in order to frustrate opposing objectives.” (Geraldo Carreiro de Barros Filho, Considerações sobre o Instituto do Lawfare).
Last week in this space we discussed how in recent years courts have played a leading role in the politics of several Latin American countries. Particularly during electoral periods, corruption cases opened against officials, former officials, and influential leaders have shaped the media and political agenda. Lawyers, officials, and media outlets refer to this phenomenon as LawFare, a war through legal means, the use of law as a weapon.
We reflected on how this new political style has clearly replaced the traditional military coup that was widely used in Latin America during the second half of the 20th century. Many analysts consider LawFare a kind of «soft» coup. In this column last week, we pointed out how the LawFare effect is impacting all of Latin America, especially with the return of left-wing regimes in Brazil, Argentina, Peru, Bolivia, and surprisingly and recently, Colombia and Chile.
The case of Mexico is different from that of the rest of Latin America. Our country experienced a kind of soft dictatorship with the hegemony of a political party (Institutional Revolutionary Party [PRI]) that ruled for 70 years without political opponents and with tight control over social, economic, and media sectors.
Starting in 2000, the presidency of the republic saw a shift in power with the arrival of Vicente Fox, representative of the National Action Party (PAN), followed by Felipe Calderon (PAN) and Enrique Peña (PRI), and currently, Andrés Manuel López Obrador (MORENA).
Amidst a global geopolitical movement accelerated by the war between Russia and Ukraine and the COVID-19 pandemic, Latin America is going through a complicated governance process that is significantly affecting its ability to recover from the economic turbulence the entire world experienced.
In Mexico, we are experiencing things differently, thanks to the achievements or luck of the current government. Our country is quickly overcoming the tourism crisis, with tourism levels similar to those of 2019. Foreign Direct Investment (FDI) is at historic levels, the peso is stable, and it seems that the economy may grow more than expected this year.
However, this economic and social situation in Mexico does not exempt us from the phenomenon of LawFare. In the 2021 midterm elections, opposition parties managed to secure a parliamentary majority, but decided not to act by presenting legislative initiatives to propose a different course from the President’s. They entered a kind of blackout period where their only argument is to oppose everything López Obrador proposes.
With nullified lawmakers, the judiciary has taken on the role of political counterbalance to the President’s initiatives, for better and for worse. On the one hand is the exoneration of Rosario Robles (former Secretary of Social Development and accused of fraud). Another example is the amparo (legal protection) against freezing the bank accounts of Cristina Pereyra Gálvez, the wife of Genaro García Luna (the former Secretary of Public Security). This was granted by a collegiate court, even though she was accused in Mexico of money laundering. The same benefit was granted to the former director of Federal Security of the Federal Police, Luis Cárdenas Palomino, who was García Luna’s right-hand man.
On the other hand, the judiciary has already struck down some initiatives presented by President Obrador, such as those related to the National Electoral Institute and decrees considering public works, like the Tren Maya as matters of national security. In Mexico, we are witnessing an unprecedented battle between the real powers, the judiciary vs the executive. Although it seems that LawFare already has precedents in Mexico, this year we will surely witness more events related to this phenomenon.
