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 Editorials | Opinions | April 2005 
The Desafuero of Political Reason
 Kenneth Emmond - The Herald Mexico
| | The Alice-in-Wonderland Queen-of-Hearts scenario would be amusing if it didn't threaten the very foundation of Mexico's legal system. |
So far, media attention has focused almost entirely on the fast-dimming future of Andrés Manuel López Obrador as presidential candidate for the Party of the Democratic Revolution (PRD) in 2006.
The political class from the National Action Party (PAN) and the Party of the Institutional Revolution (PRI) joined forces to launch a preventive war, cloaked in the rhetoric of the Rule of Law, to silence a potential one-man weapon of mass destruction who threatened their interests — to wit, Andrés Manuel López Obrador.
The game is young and there are months of political and judicial skirmishes yet to come, but as of now the score is: political class 1, AMLO 0.
This game is a blight on the administration's record and a setback for the fledgling trend to fair elections, but it's not necessarily the worst travesty. The precise manner in which Mexico City lost its mayor may prove to be a more long-lasting legacy.
It's dangerous because it violates a convention that's nearly 1,000 years old.
The immunity enjoyed by López Obrador as mayor until a few days ago, and that continues to be enjoyed by all other elected officials in Mexico, has its roots in an ancient convention called the fuero (hence the term "desafuero," applied to stripping him of said privilege). It originated in medieval Spain centuries before the Conquest.
By custom the seigneur, or community leader, was vested with special powers — and special responsibilities.
When he took office, the new seigneur swore an oath to uphold the law and provide good leadership. In those days, one may conjecture, the oath might have had more force of suasion than it would today because most people were profoundly concerned about the fate of their souls in the next world.
In return for vowing to be a good and honorable leader, the seigneur was given immunity to protect him from frivolous and distracting accusations and lawsuits.
It was a reasonable exchange of privilege for responsibility. Some time after it was transferred to the New World, the institution seems to have lost much of its symmetry.
Through generations of New World history, many politicians are believed - or known - to have engaged in all manner of corrupt activities, from embezzlement to extortion and murder, using the fuero as a shield to protect them from the not-so-long arm of the law.
Just recently, a flurry of legal charges against national leaders present and past and other politicians has erupted throughout Latin America, but one would be hard pressed to find a case of a major conviction before, say, 1995.
A recent example of a successful application of the fuero is that of the governor of Morelos, Sergio Estrada Cajigal. Despite a Congressional vote in favor of a desafuero, Estrada Cajigal had that decision overturned in the Supreme Court.
He remains governor despite an impressive body of evidence that he may be guilty of collusion with narco-criminals in his state.
Contrast that with López Obrador's situation.
The federal Attorney-General's department punctiliously followed the letter of the law in executing his desafuero, and no defense is likely to have this case thrown out on a procedural technicality.
Sadly, it seems the administration of President Vicente Fox has forgotten the major premise of the fuero concept - in other words, the spirit of the law.
López Obrador was hounded out of office on precisely the kind of legal dispute the convention was created to protect him from - a frivolous charge.
Those who argue that ignoring a court order is not frivolous discount the enormity of real crimes committed by politicians, including some of López Obrador's predecessors, that go uninvestigated and unpunished thanks to this centuries-old, honor-based custom.
López Obrador's alleged crime is simply not in the same league as the one Estrada Cajigal, a member of the governing PAN, is accused of. Yet who remains out of office?
If the government proceeds with its talked-about intention to dredge up some of López Obrador's old "crimes" and add them to his rap sheet, this exercise will be even more plainly seen for what it is - harassment of a man the political class doesn't want as a presidential opponent.
It's a disturbing legal precedent.
As the ancient Spaniards knew centuries ago, if sitting politicians can be removed from office with frivolous charges, it places the smooth functioning of government at every level at serious risk. Because few politicians are not guilty of one niggling infraction or another, this cavalier use of the desafuero threatens the very concept of law and order the government claims to be upholding.
In the long run, it may do much more damage to the nation than the loss of a favored presidential candidate.
Indeed, a desafuero market may already be developing. A PRD politician says the PAN swapped a PRI vote for López Obrador's desafuero in return for its vote against one for the PRI's Senator Ricardo Aldana, for his suspected role in the billion-peso Pemexgate scandal. A rumor, yes, but plausible.
This Alice-in-Wonderland Queen-of-hearts scenario would be amusing if it didn't threaten the very foundation of Mexico's legal system.
Let us hope that lawyers and judges keep this in mind as the legal peristalsis moves the López Obrador case slowly through the court system.
Kenneth Emmond is a freelance journalist and economist who has lived in Mexico since 1995. Kemmond00@yahoo.com |
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