By Brenda Cordova, Braumiller Law Group Mexico Legal Counsel
On September 15th, 2024, the Mexican Congress published on the Diario Oficial de la Federacion (Mexican Official Gazette) a decree to amend, add, and abolish several provisions of the Mexican Constitution regarding the Judicial Power. This reform, as it is being called, is one of the major changes to the Mexican Judicial System and has been met with heated debates by opponents who fear it will put the balance and separation of power at risk as it will result in a weakened and deteriorated judicial system overpassed by the legislative and executive powers.
Mexico has a federal system which includes 3 Federal Powers or Branches: the Executive, Legislative and Judicial. Altogether, but in an independent way, they are responsible for the provision of justice, for solving conflicts, creating the law and enforcing it. The Executive Power is the Mexican President and its cabinet; the Legislative is the Congress and Senate; and the Judicial Power is composed of Ministers of the Supreme Court of Justice, the Electoral Tribunal, Regional Courts, Circuit Courts, Appellate Court and District Courts. To guarantee their independence, these Powers or Branches shall act based on the principles of impartiality, legality, objectiveness, and transparency.
Generally, the Judicial Branch, through its members (Supreme Court Ministers and federal and state magisters and judges) is responsible for the interpretation and constitutionality of laws and for the provision of justice for the people.
Currently, there are 11 ministers, which are appointed by the Mexican President with the support of two thirds of the Senate. Their term in office is 15 years and they cannot be reelected, but after completing this term they will continue receiving a retirement payment. The President of the Supreme Court is internally elected within and from active Ministers.
In the case of federal magisters and judges, they are appointed by the Federal Judicial Council (institution of the Judicial Branch and are responsible for the internal judicial career, administration, surveillance and discipline), and their term in office is 6 years, and if reelected they cannot be removed unless set forth under the law. State magistrates and judges are selected among those who have effectively served in the administration of justice or deserve to be there because of their honorability, competitiveness and legal background. Their term in office can vary depending on each state. In addition, all candidates, whether federal or state, shall comply with the criteria, requirements and proceedings stated on the applicable regulatory laws.
These and other legal provisions were changed under the recently published Constitutional Reform. Here is a brief summary of some of the provisions which have been under debate:
- Number of Ministers of the Supreme Court shall be 9 (before it was 11). Court Ministers shall serve for a 12-year term (before it was 15). Their salary shall not exceed that of the Mexican President. Their meetings shall be available to the public.
- The Mexican President will no longer have authority to nominate candidates for Ministers of the Supreme Court.
- Magistrates and judges shall serve for a 9-year term and reelection is permitted.
- Ministers, magistrates and court judges shall be elected by means for free, direct and secret vote by the people. Anyone, can apply to be a candidate as long as they comply with various requirements (have a law degree, graduating academic grades of more than 8 (out of 10), and for courses related to the specific area of the law for which they want to participate as candidates graduate with a 9 (out of 10), have 5 years of experience as a legal practitioner, present an essay explaining the reason why they want to be candidates, along with 5 letters of recommendation from supporters, others.
- Anyone can denounce before a Court of Judicial Discipline (created under this reform) violations of the Ministers, Magistrates and Judges.
- The judicial career shall be subject to the corresponding regulatory laws (which have yet to be published).
- The three Federal Powers shall nominate the candidates and shall create an evaluation committee of 5 individuals (well known in the area of the law) which will analyze each of the candidates that participated in the election. The selected candidates shall be sent to the National Electoral Institute (INE – Instituto Nacional Electoral) who will coordinate the elections. It will also be responsible for counting the people´s votes, publishing the results, and issuing the certificates for commissions.
- Public and private finance for candidates is forbidden.
- Judges must rule cases related to tax matters within 6 months
- Others
Despite the debates and polarized discussions, everyone agrees (including opponents) that the Mexican Judicial Branch does need a change because there is corruption, nepotism, processes taking longer than needed, and they are expensive, among others.
Regardless, the opponents considered that the Reform must be approached differently. They show concern that the Reform could affect the due process and damage the Mexican democracy and independence of the Judicial Branch, because the election of judges and magistrates might turn the process into a political one, since they may take sides and favor those who helped them fund their election campaigns. They argue that the newly elected judges and magistrates may not be required to have the experience and knowledge needed to rule on complex cases. In addition, if the periods of time a court will have to rule on certain cases is limited, this will be useless if there is not enough personnel, infrastructure and experienced personnel. Also, the anxiety not only goes to a national level, but the United States and Canada have shown concerns regarding the consequences that this reform may bring into the commercial relations among the three countries.
Opponents are seeking legal remedies both domestically and internationally to secure an injunction that would halt the implementation of the new Constitutional Reform. However, various political and legal factors could complicate achieving a favorable result. This reform was proposed and presented by President Andres Manuel Lopez Obrador, 16 days prior to his completing his term in office. The new Mexican President, Claudia Sheinbaum took office on October 1, 2024 and backs this reform. Thus, she will give continuity to the same path forward and will oversee the drafting of the specific regulatory laws which shall be created to apply and make the new Constitutional provisions effective. Consequently, it is essential to remain vigilant and monitor the development of how this significant change will be executed by the new Mexican government.
