"Immune to Democracy"--A Commentary by Prof. Bruce Ackerman and John Ackerman
(This essay was originally published in the March 4, 2005, edition of the New York Times.)
Immune to Democracy
By Bruce Ackerman, Sterling Professor of Law and Political Science, and John Ackerman, professor at the Latin American Faculty of Social Sciences in Mexico City.
Although the world has hardly noticed, Mexico is confronting the first great test of its commitment to democracy. Andrés Manuel López Obrador, the mayor of Mexico City, is the leading candidate for the presidency in 2006, ahead of his rivals by five to 15 percentage points in the polls. His adversaries are responding by abusing the law to bar him from the race. The Mexican Chamber of Deputies is now considering whether to strip Mr. López of his legal immunity from criminal prosecution - the first step toward eliminating him from the presidential contest.
The charges against him arise from a minor controversy in which Mexico City took some land to build a road to a private hospital. When the owners protested, a judge ordered the bureaucracy to ensure that the construction project did not deny them access to their property. Officials are accused of ignoring this order for a couple of weeks, and the attorney general wants to hold Mr. López criminally responsible, alleging contempt of court. But as the mayor has official immunity, only the Chamber of Deputies can lift it.
Attorney General Rafael Macedo de la Concha, appointed by President Vicente Fox, has not provided substantial evidence that Mr. López was personally involved in the alleged contempt of court. His office is relying primarily on a theory of criminal negligence that would make the mayor responsible for his underlings' actions. This sweeping theory is alien to the principles of criminal law, which emphasize personal responsibility. It could turn the mayor of any great city into a criminal 100 times a day.
In any event, the alleged breach does not amount to a crime. Although contempt of court is a serious matter, it is not subject to an explicit penal sanction under the Mexican criminal code. The attorney general's office itself has emphasized this point when refusing to proceed against other public officials accused of similar offenses. But none of them were running for president.
Under the Mexican Constitution, immunity may be removed only "for the commission of crimes while in office." Such a finding lacks a plausible legal foundation in this case. It would make the impeachment of former President Bill Clinton seem an exercise in pure reason.
Mexico City, like Washington, D.C., is not a full-fledged state in the Mexican Union. Though its mayor is democratically elected, the federal congress is in ultimate control. This fact serves as the political crux: While Mr. López's left-center Democratic Revolutionary Party is popular among the 8.6 million inhabitants of Mexico City, it has only 97 members in the 500-seat Chamber of Deputies. As a consequence, the leaders of the two other parties - President Fox's conservative National Action Party and the formerly dominant Institutional Revolutionary Party - are sorely tempted to form a coalition to destroy the threat to their continued ascendancy.
But a mature democracy is based upon political restraint. A lapse at this point endangers the great progress Mexico has made over the last decade. The threat to Mr. López's candidacy has already stirred enormous street demonstrations. About a quarter of a million people marched last August in Mexico City, when the legal shenanigans began, and even larger demonstrations can be expected if the chamber authorizes the attorney general to obtain an indictment from a notoriously pliable judiciary.
There is still time for friends of Mexican democracy to voice their concern. Secretary of State Condoleezza Rice is scheduled to meet with President Fox in Mexico City next week, inaugurating her diplomatic engagement with Latin America. She should not miss the opportunity to emphasize that democracy-building is a continuing project, not a one-time achievement.
Bruce Ackerman is a professor of law and political science at Yale. John Ackerman, his son, is a professor at the Latin American Faculty of Social Sciences in Mexico City.