Mexican Reforms Will Subordinate Judges to Politicians, Say Legal Experts

Protesters interrupt a session in which lawmakers were debating the government's proposed judicial reform, in the Senate in Mexico City on Sept. 10, 2024. Felix Marquez/AP Photo

Analysis

Legal experts say the reforms approved by the Mexican Senate on Sept. 11 will have a huge effect on the rule of law in the country and could lead to a Venezuela-style judiciary, such that the ruling party’s edicts are not challenged.

The legislation will alter the status of 7,000 judges, up to the Supreme Court level, who will be elected by popular vote.

It also reduces the number of Supreme Court judges from 11 to nine, caps term length at 12 years, halves the necessary work experience to five years, and abolishes a minimum age requirement of 35.

The reforms, championed by outgoing Mexican President Andrés Manuel López Obrador, were passed after dramatic scenes and protests by those who feared they would disrupt the balance of power in Mexico’s legal system.

López Obrador—also known by his initials, AMLO—signed and published the decree on Sept. 15, and it went into effect one day later.

Francisca Pou Giménez, a senior researcher at the National Autonomous University of Mexico, said the reforms put Mexico on the same track as Venezuela, where she said “the judiciary was subordinated at the beginning by chavismo, with profound, long-lasting damage to democracy, up to this day.”

Few protests about judicial reform around the globe can have caused such consternation, with the possible exception of Israel, where tens of thousands have marched about proposals put forward by Israeli Prime Minister Benjamin Netanyahu.

On Sept. 11, the Senate in Mexico City voted 86–41 in favor of the change, securing the two-thirds majority needed to pass the amendment to the constitution.

‘Turning Point’ in Mexican History

Jesús Silva-Herzog Márquez, a journalist and political analyst, said, “We might have the obligation of remembering Sept. 11 as a turning point in Mexico’s democratic history.”

During a live-streamed discussion at the Wilson Center in Washington on Sept. 11, he said the approval of the reforms would have a “huge impact on the rule of law in Mexico and a definite impact on Mexico’s democracy.”

María Amparo Hernández Chong Cuy, a circuit judge in Mexico, said in the same discussion that the way the reforms were pushed through was very “worrisome.”

She said the Mexican government had “rushed” the whole process and that she suspected that the process of choosing candidates for the election of hundreds of federal judges would also be rushed.

Half of the judges would be elected in an extraordinary election in June 2025 and the other half in an election in 2027.

Amparo said the question of who gets on the ballot would be “a political decision taken by political bodies.”

She said incumbent judges had been offered a direct place on the ballot, but she had no doubt that they would be painted as the “villains” and that the “possibilities of winning with all this adversity were very low.”

Pou Giménez said the “radical” plan to make all judges’ positions dependent on the popular vote was “definitely designed to weaken and subordinate the judiciary to the political majorities of the day.”

She told The Epoch Times, “It is controversial because it clearly tries to eliminate checks and balances on the executive and the legislative [branches], preparing Mexico for unconstrained majority rule in the name of ’the people.'”

The U.S. ambassador to Mexico, Ken Salazar, has said the election of judges by popular vote constituted “a major risk to the functioning of Mexico’s democracy.”

But why is it perceived as a risk in Mexico, but not in the United States, where judges are also elected in many U.S. states?

A briefing by the U.S. State Department reads: “Partisan elections are held to select all or most state and local judges in 13 states and some judges in an additional eight states. Nonpartisan elections are held in an additional 20 states, while others are appointed by state officials. In total, one half of American states hold elections for the judges on their state supreme courts.”

‘Not Comparable’ to US

Pou Giménez said that the position of state judge in the United States is not comparable to the positions of the Mexican judges.

“U.S. state judges are voted in districts on the basis of individual candidacies, and people have a chance to get to know their profiles, supervise their performance, and hold them accountable,” she said.

“More importantly, the powers of the U.S. state judge are strongly constrained by the adversarial nature of U.S. legal procedures, by the doctrine of stare decisis, and by the high degree of stability of the law, more generally. As a result, the U.S. local judge is mostly an arbiter.

“It is the jury who decides on the facts, not the judge. By contrast, Mexican judges and magistrates have lots of powers. ... it is them and not a jury who decides, within systems without strong stare decisis [legal precedents].”

Pou Giménez said the reforms in Mexico would completely replace the entire judiciary—except for military tribunals, bureaucratic tribunals, and land courts—in just three years.

“The only country that has elected judges in Latin America is Bolivia, and election is only for members of the three apex courts. The Mexican reform is incomparably more radical,” she said.

“The act of voting will be meaningless since names will mean nothing to people, who will likely select the judges sponsored by the executive.”

In a joint article for the international law firm Reed Smith, attorneys Francisco Rivero, Arturo Muñoz Holguin, and Isabella Lorduy wrote that the reform “would fundamentally reshape Mexico’s judiciary.”

“Changes in judicial selection and term limits could affect the timing and consistency of legal decisions, while international concerns may impact investor confidence and trade relations,” they wrote. “These shifts may require businesses to adapt their legal strategies and risk management approaches.”

López Obrador said the reforms would create a more just and transparent judiciary.

U.S. President Joe Biden (L) and Mexican President Andrés Manuel López Obrador hug during a welcome ceremony as part of the 2023 North American Leaders Summit at Palacio Nacional in Mexico City on Jan. 9, 2023. Hector Vivas/Getty Images

During a news conference on Sept. 11, he said: “It’s incredibly important to put an end to corruption and impunity. We are going to move forward in Mexico, and we are going to set an example for the world.”

Mexico’s incoming president, Claudia Sheinbaum, also from the Morena party and a close ally of López Obrador, praised the new legislation.

Sheinbaum wrote in a statement on social media platform X: “With the election of judges, magistrates, and ministers, the administration of justice in our country will be strengthened. The regime of corruption and privileges is becoming a thing of the past, and a true democracy and the rule of law are being built.”

Claims of Corruption ‘Exaggerated’

But Pou Giménez said the claim that many judges were corrupt was “exaggerated and unsupported by empirical data.”

“There is a measure of corruption in the judiciary, to be sure. ... but the reform is not based on any diagnosis,” she said.

“There has been not the slightest effort to assess and evaluate problems and solutions.”

Pou Giménez said the most corrupt institutions in Mexico were the police and the prosecutorial offices, neither of which would be affected by the reforms.

“The reform will leave state judiciaries and a federal judiciary weaker and more prone to corruption,” she said. “The reform does the opposite [of what] it should do, were it really interested in curbing corruption.”

The Associated Press contributed to this report.