Implications of the Judicial Reform Initiative in Mexico  

Hilel E. Silvera Tawil,  August 21, 2024

Diaz Reus - The initiative to reform the judiciary in Mexico, presented by the Federal Executive to the Chamber of Deputies on 5 February 2024, contemplates significant changes in the system of administration of justice at the federal and state levels.

First of all, it should be recalled that, under the current scheme, governed by the Judicial Career Law of the Federal Judiciary, published in the Official Journal of the Federation on 7 June 2021, new rules were established based on a meritocratic and egalitarian system. In this context, individuals are selected on the basis of a critical analysis of their knowledge, skills and abilities. Today, there are compulsory competitions and courses to ensure that the positions of magistrates and judges are filled by people with the required level of aptitude, thus avoiding subjective selection criteria.

On the contrary, the proposed reform suggests that the election of the people who should occupy the most important hierarchical positions in the judicial system of our country should be carried out by popular vote, and this reform contemplates replicating the same model in the 32 states of Mexico. In this context, competitive examinations would disappear, which could compromise the legitimacy of the judicial function and lead to inefficient decisions that would not effectively solve problems.

The main modifications are aimed at the process of appointment and citizen selection of all the ministers of the Supreme Court of Justice of the Nation, magistrates and judges at all levels of the country.

It is important to underline that a constitutional democratic system is governed by the principle that majorities are limited by the rules established in the Constitution, in order to prevent such majorities from exercising absolute control. In this sense, judges must be independent of majorities in order to ensure that judicial decisions are impartial and not subject to dominant political interests.

It should also be considered that if this reform favours the influence of major politics, judges could be conditioned by political-electoral cycles. This could negatively affect decision-making in each individual case, as it could be oriented towards prioritising the interests of their future constituents or the political groups that support them, rather than fair decisions in accordance with the law.

On the other hand, in the event of an immediate replacement of the judges currently hearing a number of cases, many of which are at the resolution stage, most of the respective proceedings would be considerably delayed. The new persons in charge would need time to analyse and understand the cases, which would eliminate the judgement of the previous judge and the work previously done.

In addition, the initiative proposes to eliminate the Federal Judiciary Council (CJF) and instead establish a Judicial Disciplinary Tribunal, composed of five magistrates also elected by popular vote, to oversee the actions of the nation’s public servants.

This is worrying, as such a Tribunal could encourage judges to act in the interests of the political parties and majorities that elected them or, as the case may be, their future electors. Members of the Tribunal could justify decisions based on political expediency rather than moral and civic analysis.

There is no doubt that such a Tribunal would be composed of political-electoral profiles, rather than people with the necessary preparation and technical knowledge. The citizenry, as in the case of public servants in the Federal Judiciary, would elect people proposed by the political parties of their choice.

Finally, the reform proposes to modify Article 17 of the Constitution, imposing a maximum period of six months for judges to issue their rulings. This is highly problematic, as public servants would be pressured to rule within the established timeframe, regardless of whether the sense of the sentence is correct, which could lead to incorrect, unfair and biased decisions.

Importantly, the Inter-American Court of Human Rights has pointed out that it is not appropriate to set a specific deadline for the resolution of a case, as this could reward political or majoritarian interests over a fair resolution. For this reason, the Court emphasises the review of four criteria: 1) the complexity of the case, 2) the procedural activity of the interested party, 3) the conduct of the judicial authorities and 4) the impact on the legal situation of the person involved in the process.

In summary, this opinion arises from the national concern about the possible implementation of this reform of the judiciary, presented on 5 February of this year. Although a reform is necessary to improve the current guidelines, if the proposal is implemented, the system of justice in Mexico would be seriously affected.

Hilel E. Silvera Tawil, Local Partner (Mexico), Diaz Reus

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