Photo by Hector Vivas/Getty Images
Photo by Hector Vivas/Getty Images
President Andrés Manuel López Obrador has proposed a package of constitutional reforms that would transform the composition of Mexico’s judiciary, among other changes. Mexico’s incoming federal Congress, dominated by the coalition led by ruling party MORENA, could vote on this reform as soon as September.
Below, we summarize some aspects and probable impacts of the judicial reform bill, focusing on the bill’s proposal that judicial authorities be elected by popular vote.
Election of judicial authorities: democratization or political capture?
The judicial reform proposes the popular election of all judges and magistrates of the Federal Judicial Branch (Poder Judicial de la Federación, PJF). In other words, the selection system for federal judges and magistrates would change from one based on professional examinations to one based on the popular vote. Supreme Court justices, currently appointed through a procedure involving the federal executive branch and the Senate, would also be elected by popular vote, as would electoral magistrates.
The reform also mandates that each of Mexico’s 32 states replicate this same model for state judiciaries. Such a system of election of judicial authorities at all levels would be unparalleled in the region.
In this new system, candidates for judicial positions would be nominated by the three branches of government: executive, legislative, and judicial. The current version of the reform bill specifies that, following a public call for candidacies, each branch would create an expert Evaluation Committee to select a short list of candidates. That list would then be cut down further by a lottery system and the final names would be sent to the branch in question for approval.
Consequently, if a certain political party dominates the executive and legislative branches (as is currently the case for MORENA), that party would have an outsized role in the designation of the Evaluation Committees and/or the approval of new candidates for judicial posts. A foreseeable result of this process would be a judiciary more aligned with the party in power (perpetuating, in turn, the risk of political influence in future candidacies). The proposed model could thus facilitate the political capture of the judiciary.
The reform would also establish an elected Judicial Discipline Tribunal (Tribunal de Disciplina Judicial) with broad powers to supervise and sanction judicial personnel. Among other functions, the Tribunal would evaluate judges’ and magistrates’ performance during their first year in office. Any political party that exerts influence over this body would attain significant power to pressure the rest of the judiciary.
A setback in the fight against impunity, a deepening of penal populism
In recent years, López Obrador and members of his government have continually accused the judiciary of causing impunity in Mexico. They have publicly criticized judges who free detained people, suggesting that such liberations are the product of judges’ corrupt or overly formalistic practices and promoting the idea that punishment should prevail over due process.
However, as we analyzed in our report Militarized Transformation, the overwhelming majority of cases of impunity in Mexico are not attributable to judicial authorities. This does not mean there is no corruption in the judiciary or that it is not urgent to combat it effectively. However, impunity for crimes reported by the population occurs mainly at the stage of investigation by prosecutors’ offices. Of the small percentage of crimes that do reach judicial authorities, judges tend to ratify arrests made in flagrante delicto; pretrial detention is the rule for defendants; and the vast majority of sentences handed down are convictions.
In this context, the proposed judicial reform would lead to the continuation and deepening of patterns of impunity and abuse against the population. If the government’s message is that a ‘good judge’ is one who does not free detained people, this logically encourages the election of judicial candidates perceived as unlikely to authorize liberations, which could further weaken judicial control over the actions of prosecutors and military and police forces. The result would be a justice system with even more margin for omissions in criminal investigations and for illegal practices such as arbitrary detentions, disproportionately affecting the most vulnerable sectors of society.
In a similar vein, another of the proposed constitutional reforms would expand the list of crimes that warrant mandatory pretrial detention (prisión preventiva oficiosa, PPO). That is, there would be a new increase in the list of crimes for which judges have no option but to imprison defendants during their trials, without prosecutors having to justify the need for such imprisonment. PPO is in itself a human rights violation and seriously disrupts the functioning of the criminal justice system. The Inter-American Court of Human Rights has already determined that Mexico has the obligation to eliminate this practice entirely.
Conclusion
The problem with the proposed judicial reform is not that electing judges gives ‘too much’ power to the people. The problem is quite the opposite: the election of judicial authorities, filtered by political interests and hampered by the flaws cited above, would weaken the protection of human rights and security, leaving the population exposed to impunity and abuse.
Mexico deserves an independent judiciary committed to human rights, as well as prosecutors’ offices with greater capacity to solve crimes and prosecute perpetrators based on solid evidence. The proposed reform falls far short of advancing these objectives, essential to guarantee access to justice in Mexico.
