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  2. Judicial Power And Strategic Communication In Mexico By Jeffrey K Staton -
  3. Judicial Power and Strategic Communication in Mexico

Along with creating independence within the political system, there are demands that the SCJN extend its intervention in the protection of human rights, an issue which Mexican society has considered unresolved in the SCJN's work and the importance and necessity of which the SCJN itself has recognized.

In the last years of the Ninth Epoch the first signs of change in the matter were exhibited with the reinterpretation and increased use of the Court's powers and in its manner of compiling proceedings. Once the SCJN has taken its first steps toward greater intervention in the protection of human rights, sending signals to its surroundings, it is posible that the politcal, social and economic context might respond.

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Such a response conditions the SCJN to continue in this direction or, on the contrary, if it were to experience repressive actions, principally from the other branches, it would be obligated to modify its behavior. The SCJN is developing legitimization strategies to avoid such a negative reaction from the political and social system that commonly arises in the political contexts when the Courts suddenly shift to a greater participation in the field of human rights.

However, the establishment of institutional autonomy that the SCJN has fostered is explained not only by the existence of the pluralization of the political system, but also by the creation of public policies that tend to avoid a repressive reaction from the political context toward the Court's work. It is extremely important to resolve this issue because in the process of its institutional redesign, the SCJN opted not to delve much into the suitable resources for exercising human rights protection in Mexico.

Thus, if the Court assumes greater participation in fundamental rights protection, the political context may either react repressively or legitimize this move.

Judicial Power And Strategic Communication In Mexico By Jeffrey K Staton -

Comparative history shows that on several occasions the political system reacts repressively to a certain extent when the courts take stronger action, especially when the Court directly challenge the ruler's public policies. One of the most well-known cases that illustrates this point is that of the clash between US President Theodore Roosevelt and the US Supreme Court over the New Deal economic policies, which resulted in the replacement of the Court justices with ones who agreed with the president's policies, and the implementation of the new rules regarding the composition of the Supreme court.

Deriving from this experience, the heightened importance the administration placed on the selection of new justices. Even today, the nomination process is closely followed by different political actors and the mass media since, presidents are disposed to sending the Senate nominees who do not represent a high risk of opposing presidential public policies and that, on the contrary, will most likely defend said policies in the future.

The US example is only one of many that have occurred throughout history in different parts of the world. One of the most dramatic cases took place in the first Constitutional Court of Ruisa. The Court was created in in the style of European constitutional courts, with power to attend to a wide range of constitutional proceedings presented by citizens and different political actors. One of the Court's powers was the abstract constitutional review of all acts of the State. The new institutional design represented a strong break with the Soviet past, in which the judicial branch was not a significant actor in the political system.

In carrying out its functions, the first Constitutional Court of Russia made some decisions that annoyed the other government branches, especially the local executive brach. The reaction of the local executives to the Court's imposition of limits on their public policies by the Tribunal was one of disobedience and of disagreement with the jurisdictional function of the new body.

By the discord in the political system regarding the use of the wide-reaching functions of constitutional jurisdiction that the institutional design granted the Court caused then-President Boris Yeltsin to order the suspension of its functions until a new Constitution could be drafted. The work of the first Constitutional Court of Russia was then suspended due to dissension within the system caused by the Court's exercising the wide-reaching powers bestowed by its institutional design.

The life of the first Constitutional Court of Russia was very short, given the violent reactions from the political system. In , with the approval of a new law, a new Constitutional Court was created, this time with a more limited institutional design. The new Court has gradually established its legitimacyby assuming the policy of avoiding direct confrontation with the political system. In Latin America, there have also been violent reactions to the increase in Court's work.

For example, in Argentina in , then-President Menem promoted a reform by which the number of justices would increase from five to nine. Another important and recent case is that of the Constitutional Court of Bolivia. During this period the Constitutional Court lost all of its members with the exception of one who has retained her position.

In both cases the concentration of power in the hands of the president and the intent to advance public policy program with no opposition has constrained the Court intervention in these countries' public life. Cases like these appear and reappear around the world.

This in turn creates a judicial prudence that avoids any violent reaction from the political system, especially in authoritarian contexts. Prior to the present day incipient judicial activism described by Couso and Hilbink, Javier Couso had pointed out that the Chilean courts tribunals had followed a policy of moderation in their interventions in the field of human rights protection between and , even before social demands for the reparation of harm done during the Pinochet's dictatorship, as a strategy to achieve its legitimacy. First of all, there was the strategy of moderate increases in its activity.

One clear example of this is the fact that the criteria legal standing and the inter partes clause in Amparo proceedings were not challenged, both of them key points in the institutional design proposed by the political system to limit the SCJN's involvement in the matter of human rights. The SCJN preferred not to challenge these issues via constitutional interpretation and maintained an attitude of moderation so as to avoid excessively disrupting the political system. The SCJN also moderated its interventions in other issues as well.

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For example in the power of investigation, the Court declined to asign responsabilities to high-level politicians or to provide means of restitution to the victims. In proceedings on ground of unconstitutionality, Court ministers desisted from providing definitions to rights and jurisprudence in cases of an ideological clash between the political left and right. Other legitimization strategies observed are basically media-related. The SCJN works to establish an identity before society as a protector of human rights via the media.

The Canal Judicial and the use of electronic media, besides aiding the Court's transparency and accountability, have been used to promote the legitimization of its work in human rights protection. The reactions of the political system and society to the SCJN's behavioral change regarding its constitutional jurisdiction and icreased participation in the area of human rights, are, usually, diverse and not very repressive. In a country with a long authoritarian tradition like Mexico, in which until there was no expressed intent to grant the SCJN an institutional design suitable for the protection of human rights, a negative reaction to the Court's greater involvement may be expected.

However, evidence shows that the reactions to the Court's work were not repressive enough so as to prevent the SCJN from continuing in this direction. The most hostile reaction from the political system to the SCJN's increase in its labor for the protection of human rights refers to the derogation of the constitutional power of investigation.

The political system always denied granting legal content to the decisions connected to these proceedings, which in the best of the cases only established historical truth of the facts of serious violations. In contrast, the political system's reactions to proceedings on grounds of unconstitutionality have apparently been positive, a situation which could stem from the fact that the SCJN's control over abstract constitutionality was endorsed by the political power, leading to the political system's general approval of the SCJN's execution of this work.

While this activity was limited at first, the number of proceedings initiated by elected individuals has increased, evidence of the usefulness of proceedings on grounds of unconstitutionality as perceived by political actors. Proceedings on grounds of unconstitutionality has been added to the catalog of proceedings that the public actors in the political system use for issues that go against their ideology or interests and in an attempt to promote their own agendas. Furthermore with proceedings on grounds of unconstitutionality the political power has found a way to control the economic elites via the judiciary more efficiently than by other means.

Judicial Power and Strategic Communication in Mexico – By Jeffrey K. Staton

The SCJN's policy of openness and communication in proceedings on grounds of unconstitutionality has sometimes led certain powerful groups, such as media executives or the Catholic Church, to more strongly reject the Court's actions, given that the Court has opened discussions that have limited these groups' influence over public policy making in Mexico in legislative processes. In the case of Amparo, the reactions may be less apparent because the SCJN's activities in this area have been less noteworthy.

But this is the proceeding in where the political power shows a better reaction to the increase or the SCJN human rights protection. In the same constitutional reform that derogated the power of investigation in , a new set of constitutional rules for Amparo trial were adopted to expand the importance of this proceeding in the protection of human rights, situation that implies a greater involvement of the judicial branch and the SCJN in the matter.

Specially changes in the legal standing rule leave the possibility to think in a better use of Amparo trial for protection human rights. Even more, the new constitutional drafting says explicity that Amparo trial is the means to defend human rights. Even more, there is an explicit agreement with the constituticional reform, that the SCJN must have a greater participation in the human rights protection through Amparo trial. Hopes that the SCJN will extend its constitutional jurisdiction to better include human rights protection are starting to come true.

After 16 years the SCJN has achieved its independence and gone from being a weak court when confronted with political power to enhance its involvment in the matter concerning human rights.

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The change it has undertaken has been gradual and is seen, changed interpretation and use of the Court's powers and in the way it compiles. These are some of many issues that allowed SCJN from the Ninth Epoch to assume greater role in the protection of human rights. This change should not be seen as a revolutionary change that mends all of the gaps in the SCJN's in this field.

The day when the SCJN establishes its identity as a protector of human rights is still a long way off, but the Court of the late years of Nine Epoch started to emit the first signs of this happening. With regards to explaining the rise in attempts at curbing the authority of courts, at least two theoretical approaches have been proposed.

On the one hand, Abele and Ginsburg argue that backlash is best explained by a cost-benefit calculus on behalf of governments. If the present institutional design is too costly to the incumbents, or in the case of international courts does not produce the benefits anticipated at the instigation of the court, or at the acceptance of its jurisdiction, politicization or backlash may be rational responses.

This occurs when judicialization is perceived to have 'gone too far', most likely triggered by controversial court decisions. This argument fits broadly with the strategic model of judicial politics, which assumes that both judges and policy-makers are sophisticated policy seekers and behave accordingly Epstein and Knight Voeten, on the other hand, argues that political attacks against courts are only partly related to controversial judicial decisions or broader trends towards judicialization.

In fact, most of the time, governments accept even costly court decisions as binding although meticulous compliance may not always follow. Instead, in order to explain variation in attitudes and policies towards courts, Voeten emphasizes the role of populism. Courts are particularly likely to become the targets of political attacks from populists. Judges are normally not elected by a popular vote, and easily portrayed as part of a distant elite with few attachments to 'ordinary people'.

Furthermore, Voeten argues, courts tend to drive liberal agendas, with sometimes salient distributive effects. In fact, one of the more prominent explanations of judicialization is liberal politicians attempting to lock-in their preferred policies as an assurance against future electoral defeats Hirschl Courts protect civil liberties, property rights, free markets and minority rights, such as LGBT rights and the rights of refugees and ethnic minorities-values that may not always coincide with the majority will, or the constituencies of populist parties.

Backlash and politicization of courts driven by populist parties, or mainstream parties catering to populist sentiments see Tories in the UK with regards to the ECtHR , may therefore be seen as an attempt to push back on some of that liberal ground. When it comes to possible counter responses to increasing pressure on courts, we can distinguish between factors that are within or beyond the control of judges. The judicial politics literature discusses different types of legitimation strategies used by courts, including both moderation and persuasion in the face of anticipated political reactions Larsson et al , strategic communication Staton , and strategic defection Helmke However, courts often operate under uncertainty with regards to the political responses to their decisions, and may misjudge the reception of their judgments Larsson and Naurin To be effective on the ground, and to fend off political attacks, scholars have pointed out that courts need support from allies in civil society and the broader political system Alter, Gathii and Helfer Workshop invitation In sum, we see two empirical trends intersecting: First, the judicialization of politics, which has raised the stakes in the judicial arena, as more politically impactful and sensitive issues are being adjudicated there.

Second, the rise of populism and sometimes democratic backsliding , with its inherent mistrust against liberal counter-majoritarian institutions, which are perceived as standing in the way of the realization of the will of 'the people. We welcome papers that study: - The shifting attitudes towards courts-domestic and international-in public opinion, civil society and key elite constituencies.

Judicial Power and Strategic Communication in Mexico

This may include, for example, studies of judicial legitimation strategies, executive and legislative actions aimed at constraining court behavior, the mobilization of compliance partners in support of the judiciary, informal relations between judges and other actors, the mobilization of public opinion as a source of authority in judicial politics, populist challenges to the rule of law, and to courts defending minority rights.

Theoretically, we encourage contributions that seek to develop, but also explore the limits of, the standard strategic model of judicial politics. Empirically, we are looking for work of the highest methodological quality, both quantitative and qualitative. The workshop also seeks to contribute to a unified field of judicial politics by welcoming papers both on international and national courts. In this regard, we agree with Staton and More that the relevant differences between the international and national context, when it comes to law and courts, are of degree rather than of kind, and that international relations and comparative politics scholars have been unnecessarily disconnected in this regard.

We hope to be able to discuss and illustrate similarities and differences between the international and domestic contexts in the course of the workshop. References Abebe, D. Ginsburg Alter, K.