Hiding Under the Bed Is Not the Answer


Yesterday, the Mexico’s Senate discussed the three candidates shortlisted by President Felipe Calderón to fill the vacancy in Supreme Court (For more details see my previous blog entry). The three women made presentations before the senators voted on who should be the new Supreme Court judge. In her presentation, Lilia Mónica López Benítez, the candidate with the strongest curriculum and a clear record of defending human rights, stated her position as “the defence of the constitutional principles of no discrimination and equality” and described herself as “an honest women, who keeps her word; and, who promises to adopt a frank and open position, [while] fighting for a more inclusive, just and equal Mexico.” For her part, the presidential favourite and candidate close to his right-wing party, Acción Nacional (National Action Party or PAN), Elvia Díaz de León unsurprisingly adopted a more conservative stance. Although she promised to innovate in her interpretation of the Constitution, she qualified this statement by adding that her position would always be “in keeping with our own culture” [1]. A remark which, in Mexican political code, reaffirms her commitment to a Catholic moral worldview and her opposition to the legalisation of abortion and same gender marriage.

In order to be elected, the winning candidate needed to gain a two thirds majority in the Senate vote (which meant 82 votes). In the event, the vote was split between panistas (members of the PAN), who all voted for Díaz de León (48 in total) and senators from the other three main parties, the centrist Partido de la Revolución Institucional (or PRI), and the left-wing the Partido de la Revolución Democrática (or PRD) and the Partido de Trabajo (or PT), who voted for López Benítez (in total 73). There were just two rogue votes for the third candidate, Andrea Zambrana Castañeda, who was widely regarded as merely a “filler” candidate to make up the mandatory three person shortlist. As a result, the Senate resolved to have a second vote, this time with only the two winning candidates. The hope was that the panistas would recognise the majority in favour of López Benítez and vote for her in the second election.

Unfortunately for Mexico’s Supreme Court and for her justice system, this did not happen. The panistas as a bloc maintained their vote in favour of Díaz de León and López Benítez gained just one extra vote in the second round. This vote had previously been for Zambrana Castañeda. As a result, the Senate was forced to return the shortlist to the President with no decision made. He in turn will have to draw up another in the New Year. It can only be hoped that Calderón will not be influenced by political considerations when making this decision. In similar circumstances in 2003, when the winning candidate (Margarita Luna Ramos) on the shortlist sent by ex president Vicente Fox failed to gain a two thirds majority, Fox resubmitted a shortlist containing that candidate and two others, whose curricula did not make them viable candidates. In this way, the problem was solved and Luna Ramos was finally selected in February 2004. On this occasion, it is interesting to note that the original shortlist also ran aground because of panista support for Díaz de León, who featured on the list along with Luna Ramos and José Luis de la Peza. If Calderón does not copy Fox, and insists on Díaz de León in a second shortlist, it is likely that the Senate will be split a second time and no two thirds majority will be achieved. This would leave the constitutional possibility open for President Calderón to name her unilaterally her himself at a later date [2]. That would be very unfortunate for Mexico’s Supreme Court and even more so for women and human rights in Mexico.

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On 30 November, President Felipe Calderón made public his recommendations for a new member of Mexico’s Supreme Court of Justice (Suprema Corte de Justicia de la Nación o SCJN) to replace Judge José de Luis Gudiño Pelayo, who died recently while on a trip to Britain. In Mexico, the Executive draws up a shortlist of three candidates (in Spanish a “terna“) from which the Federal Senate chooses the winner. After nearly three months of speculation, the shortlist was made up of three women, all currently judges within the Federal Judicial Power. This moves guarantees that the next member of the Supreme Court will be female, making a total of three women out of its 12 members. It is interesting to see that this fact has caused little comment in the press, thus far, with more words being dedicated to the fact that the President has been extremely tardy in handing his recommendations to the Senate; sessions are due to end in a fortnight, which as various senators have noted, gives them very little time to debate his shortlist before making an appointment. The new judge should enter the SCJN in January 2011 [1].

The three candidates, Elvia Díaz de León, Lilia Mónica López Benítez and Andrea Zambrana Castañeda, all have solid trajectories as judges. They are graduates from the most prestigious university in Mexico, the National Autonomous University of Mexico (Universidad Nacional Autónoma de México, or UNAM) with many years of experience and service. The first two candidates are probably the strongest as both are experts in penal law, which is an area in which the legal community wishes to see reinforced in the SCJN. Zambrana Casteñeda, for her part is a specialist in constitutionalist and administrative issues. Having said this, it seems likely that the first, Elvia Díaz de León, is Calderón’s favoured candidate, since she is linked to his National Action
Party (Partido de Acción Nacional, or PAN) and most especially to the current leader of the party, César Nava. In fact, this year she has already been spoken of as a nominee for political office [2]. She was a Supreme Court candidate during the government of the previous PAN president, Vicente Fox Quesada (2001-2007) and received support from panistas in the Senate, most notably from Diego Fernández de Ceballos, who was at that time the head of the Panista group in the Senate [3].

Having looked into each of the women, my personal favourite would be Lilia Mónica López Benítez. López Benítez is an expert inthe Federal programme of special witness protection [4]. In her recent book, Protección de testigos en el derecho penal mexicano (Witness Protection in Mexican Penal Law, Editorial Porrúa, 2009) she highlights the fact that 80% of witnesses in the Federal programme never make formal judicial declarations because they disappear from the system or are murdered [5]. López Benítez has also written a very interesting paper on the question of the difficulties in ensuring equality for women in access to justice. In this she studies of a 1194 SCJN’s ruling which established that rape could indeed occur within marriage, signalling that a ruling which denies a women the right to refuse to have sex with her husband puts limits on her autonomy and the rights awarded to her in Mexico’s Constitution. She also notes that Mexican jurisprudence on this subject has –until recently- limited “her sexual liberty” with recourse to “criteria governed by the closed morality of the past” and prejudices which made it necessary to prove the “honesty, modesty and good reputation” of a female rape victim in order to determine whether she had been attacked or not [6].

The lack of information about the whole nomination process is a little concerning. As the jurist and blogger Geraldine González de Vega has noted, Calderón does not give any indication of the reasons he had for choosing the three candidates, other than mentioning that they are all “persons of proved moral character and vocation for service” [7]. The choice does make it clear, however, that Calderón has heeded the recent SCJN recommendation that its future members be judges already active with the Judicial Power, rather than being personal (or rather, political) nominees. The fact that it is an unexplained all-women short-list also leaves it open to the suggestion (or criticism) that it is designed to up the numbers of women in the Supreme Court. Had Calderón announced that he considered these three women the best candidates for the job (which indeed he might), this speculation might have been reduced. In my opinion, such a state of affairs will serve to undermine whichever of the candidates who finally get the job, since there will always be those who question her legitimacy by insinuating that she did not join the SCJN on merit, but thanks to Calderón’s attempts to engineer more gender equality in the Supreme Court. This is unfortunate, to say the least, since reading the readers’ comments under the on-line stories about this nominations make it very clear that the eventual nominee will also face much hostility from some quarters for the simple fact that she is a woman [8].

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