For Constitution Day: erosion

Yesterday was Constitution Day in Mexico.

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To mark the occasion, the president announced over 20 constitutional reform proposals. While most, if not all, have little chance of being approved, they are a concerning sign of the troubled relationship many countries have with division of powers these days. We continue to ignore the perils of constitutional erosion at our own risk.

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For example, if approved, one of the reforms would cause all judges, magistrates and justices in the country to be removed from office in 2025 to be replaced by elected judges, i.e. it would make justice an entirely political matter with judges having to please constituencies to keep their positions. Not all proposed reforms touch upon the institutional design of the Mexican state but most of them do significantly damage fundamental rights, which is ironic given the neoconstitutional rederick the government sports, including through former justices who have joined the ranks of the ruling party.

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An industry I know well and was associated with for many years, non-combustible nicotine, could be outlawed entirely via constitutional reform. Yes, you heard that right: a matter as immaterial to the constitutional framework of a state as e-cigarette prohibition is being elevated to constitutional rank. Two articles would be amended, one to prohibit the manufacturing and sales of e-cigarettes and, get ready for this: fentanyl, and another one specifying that these activities are not licit and, therefore, not protected by the right to enterprise and free choice of occupation. There is no support or rationale for such an all-encompassing prohibition, scientific or otherwise. In fact, the scientific consensus is that vaping is much less harmful than smoking. Yet, the reform does not touch cigarettes but impinges upon the rights to self-determination, health and economic activity without any proportionality analysis or impact assessment. Notwithstanding the fact that cannabis production for self-consumption, for instance, has been protected by the Supreme Court on the grounds of self-determination. Notwithstanding the fact that making free and informed decisions about one’s health and taking steps to improve it are at the core of the right to health. Notwithstanding the fact that the FCTC, an international treaty Mexico is a party to, requires tobacco policy to be informed by science. These proposed changes should give other industries pause. Constitutionally prohibiting a product that is not a narcotic or illegal substance is the ultimate level of state overreach. Once one product gets there, it’s a slippery slope.

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This is not the only conflict between the proposed amendments and human rights. The reform would increase the scenarios in which pre-emptive ex officio imprisonment (PEI) would be allowed although PEI, as set forth in the Constitution today, has already been found in breach of the Interamerican Human Rights Convention by the competent international court.

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If approved, these reforms will likely be beyond constitutional control by the Supreme Court which function is to ensure that laws, administrative actions and judicial decisions are consistent with the constitution but not that the constitution is consistent with itself or with international law. Will Mexican citizens, individual or corporate, be forever in need to seek the protection of international human rights courts against their own constitution? And, more worrying still, as it is already clear that compliance with decisions of the Interamerican Court of Human Rights is entirely a matter of political will and no coercion is possible, what would the point of seeking protection there be?

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The trivialization and manipulation of the constitutional text, the material core of the constitution and constitutional tribunals are not exclusive to Mexico. Constitutional and administrative law are politics infested in many a country. The cheerful statement of optimist scholars claiming that slavery does not need to be expressly forbidden in constitutional texts for it to be clearly outlawed and impossible to legalize is put to the test. No, I am not comparing vaping and slavery. No, I am not comparing vaping and PEI. These proposals are, everything is rendered valid exchange currency for power, from your freedom to choose to your presumption of innocence to judicial independence. Everything.

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If societies, citizens, corporations, NGOs, academics, judges, writers, etc. allow constitutions, so hardly fought for and cherished, to become nothing more than wet paper in the name of populistic political ideologies and under the disguise of a porous concept of human rights where everything and anything fits as long as it is convenient for the government and emotionally pleasing to the crowd, who, then, will protect us from ourselves?