Mexico. A Judicial reform and a new country

I was absolutely thrilled the first time that I had the honor to visit as a law student the Supreme Court of Justice of Mexico, and even more when our group entered the plenum hall, impressive place, decorated with its beautiful red carpet, the half-wooden walls and the eleven chairs of the Ministers, under the sight of Benito Juarez painting right in the middle (as a reminder that he also served as President of the highest court back in 1857), and two quotes in golden letters that read as follows: “our homeland comes first” (attributed to Vicente Guerrero) and “the respect for the rights of others is peace” (attributed to Juarez himself); our guide meticulously described  at that time for us, the competence of the controversies that were resolved by the Court, the fact that they were the guarantors of our Constitution and defenders of our rights, and made it clear that none of us were electable for the position of Ministry at that time, since we did not comply with the requirements established in the article 95 of our Constitution.

The Judiciary branch of the government is more than just the eleven ministries that compose the Supreme Court, according to the latest census of the INEGI on Justice Administration, the Federal Judicial Power, excluding the Supreme Court and the Federal Electoral Court, includes more than nine hundred jurisdictional bodies, leaded by approximately 1580 federal judges, divided between around 981 magistrates and 599 judges. And if we want to understand the full size of the Judiciary power, we will need to consider, that the State and Local Judicial powers are composed by more than five thousand and three hundred courts or tribunals, leaded by more than six hundred magistrates of the local Superior Courts of Justice of every State and more than four thousand local judges, that require the work of almost eighty thousand public servants to operate on a daily basis.

As any branch of any government, the Judiciary can always be improved, and there have been several legislative initiatives focused on this purpose in the last decade, however, none of them had been as profound and radical than the initiative to reform the judicial power announced last February 5th, 2024 by President Lopez Obrador, as an integral part of a group of twenty fundamental reforms that according to him, were based on austerity, liberalism and democracy.

The reform to the Judiciary is complex and based in different elements, such as the election of ministers, magistrates and federal judges by popular vote, lowering the requirements to aspire to these positions, establishing a new administrative body in the Federal Judicial Branch, the creation of the Judicial Disciplinary Tribunal, and the explanatory memorandum includes a series of concrete measures to ensure, in the opinion of those who proposed the reform, a prompt, expeditious and more humanist justice.

There are some potential problems associated with these amendments, since the popular election of judges does not guarantee greater legitimacy of the judicial powers or higher quality of judicial decisions; the integration and operation of a new judicial administration body can imply yearly negotiations of the Judiciary budget which can compromise its independence, more importantly, the decisions of this new body are not going to be subject to appeal, leading to possible arbitrary or abusive decisions; the new Court of Judicial Discipline is also to be elected by popular vote which can compromise its independence and impartiality, and the more concerning aspect, is that the new disciplinary procedures might be influenced by political affiliations or preferences, meaning that, judges and magistrates could potentially be sanctioned if their rulings are given against the interests of the existing political forces.

One big and uncomfortable truth is that the implementation of this reform is going to be expensive, representing a huge cost to all the Mexican taxpayers and households, the implementation is going to be gradual, for example, in June 2025 an extraordinary election will be held in order to elect: the nine Ministratures of the Supreme Court of Justice of the Nation (SCJN), two vacant judgeships of the Superior Chamber of the Electoral Tribunal of the Federal Judiciary (TEPJF), five judgeships of the new Court of Judicial Discipline (TDJ), all fifteen magistrates of the five regional chambers of the TEPJF; the Specialized Chamber is not included as it is proposed to be eliminated, and half of the positions of circuit magistrates and district judges of the entire Judicial Branch (considering vacancies, resignations and scheduled retirements), meaning that around 800 new judges and magistrates are to be appointed by popular vote; those elected should take office on September 1st, 2025.

Then, on a second stage, the five current judgeships of the Superior Chamber of the Electoral Tribunal, and the rest of the approximately 800 positions of circuit magistrates and district judges will be renewed in the mid-term election of 2027, together with the renewal of the lower chamber of the Congress of the Union. It is important to clarify that the members of the current Superior Chamber of the Electoral Tribunal will not be eligible for election in 2027.

The local branches of the Judiciary of all the 32 federal entities of Mexico, will have a term to implement the reform, this is until the ordinary election of 2027, to renew the totality of the elected positions of the local judicial branches. All the States of the Federation can opt for gradual renewal in 2025 and 2027, or a total renew in 2027, which probable will be the case for most of the States.

Having a new Supreme Court and new rules for its integration and operation represent a huge change for any country, but media and public opinion are not necessarily talking about the political and social impact of having a new popular elected Federal Electoral Tribunal, which can for many reasons lose its independence; and whose members as well, might be influenced by political affiliations or preferences, this Electoral Tribunal is the competent Court for declaring elections valid or null, therefore, having control over an electoral body could mean that the ruling party might have more strength in keeping and maintaining power in the years to come, making it difficult for the opposition to diminish that power or aspire to a democratic transition.

As I write this article in the early hours of September 4th, 2024, the Judicial Reform was passed few moments ago by the lower chamber of the Mexican Congress, with 359 votes in favor, mainly from Morena and allies congresswomen and congressmen, and 135 votes against, mainly from PRI, PAN and MC, it was voted in an alternate location different from the Congress, since the access to the building of the Mexican congress was blocked and taken by members of the Judicial body, students and opposers to the reform. The session was held even though a Federal Judge had ordered its suspension, and many congress members allegations of irregularities in the legislative process, including the change of location for the debate of the reform. The Senate debate follows, in which, at least at this moment, Morena and its allies, lack one senator to be able to pass the reform, the opposition claims that there will be no Judas on their side. It is expected that the upper chamber will also approve the reform at all cost, despite the protests, the fight and the public arguments that the members of the Judiciary perform daily against this amendments.

In fact, since August 21st, 2024, thousands of members of Mexico's federal judicial branch nationwide initiated an indefinite work stoppage as a protest, in response to the proposed judicial reform, and in an unprecedented act, the ministers of the Supreme Court joined the general strike yesterday, on September 3rd, 2024, with 8 votes in favor and 3 against of the plenum of the Court.

Believing that Morena was not going to pass the reform at any cost was naïve, it is a reality that today we woke up being a new country, it is expected that the reform is going to pass in both chambers, but it is also true that Morena party legislators ignored that any attempt at judicial reform or policy must necessarily consider its potential impact on the day-to-day operation of the courts and on people's access to justice.

A modification of this magnitude, that is not properly planned and executed, and that did not listen to all the voices of the parties involved, may aggravate and compromise the thousands of cases that are subject to the jurisdiction of Mexican judges, and it seemed that the Morena legislators rushed the debate, which was somehow irrelevant due to the majority that they hold in both chambers, just to please its political leader and passing the reform before his departure on October 1st, a reform that will alter the composition of the only visible counterbalance that the Executive branch had in the last six years.

Now, Mexico as a country, and we, the Mexican people, are uncertain about what is going to happen next, the reform will fundamentally reshape Mexico's judiciary, and therefore reshape a new country. We all aspire to have the best composition for the Judiciary, the Legislative and the Executive branches of our governments, however, it is hard to believe that this reform and its consequences are going to respect those golden lettered quotes that I read while I was a student inside the plenum hall of the Court: “our homeland comes first” and “the respect for the rights of others is peace”; on the contrary, the independence, reliability and professionalism of the Judiciary is now at a stake.

To revert this, Mexico would need in the future a new Constitutional reform, which is not foreseeable soon, or at least, while the current political forces controls the Legislative and Executive branch; challenging times await, we need to understand, that we will be soon a new country, and that we will need to face the consequences and pay the price of the decisions passed today by our representatives, who swore few days ago to protect the Constitution and the interests of our homeland, not the interests of a single man.