Mexico’s judicial reform explained

A concise overview of Mexican government's justice reform.

The Chamber of Deputies moved to a sports centre after protests broke out against the rushed approval of sweeping reforms of the country’s judicial branch. It was clear many of the deputies had not read or did not understand what they were voting on. One railed against federal attorneys offices, which are not touched by the reform.

The bill was approved anyway by the ruling coalition, made up of Morena—the current and future presidents’ party—along with the Green and the Labour Parties. The reform then sent to be passed in the upper house by a hairbreadth after an evening of political defections and tensions, as protestors stormed the Senate. 

The virulence of the debate, coupled with the speed and seeming corruption with which this crucial reform has been pushed through, has distracted from what it is really about. 

Mexico’s judiciary today

The current judicial system in Mexico comes from a similarly rushed 1994 reform. True to the technocratic spirit of the age, it was determined that judges would be elected through “objective methods.” The result was the creation of a Judicial branch that looked a bit like a religious order or university: Its faculty was in charge of hiring, examining, promoting, and disciplining staff (with the exception of the Supreme Court). The body in charge of this would be the Federal Council for the Judiciary (CJF).

At the time it was said that, if all went well, this independent government body would be a place of autonomous professionalism… or one of impunity, if it all went south. Which way the government’s institutions have gone since has been the debate surrounding every major change instituted by this administration, from purges in cabinet ministries to the overhauling of Mexico’s independent regulators. What the ruling coalition has always asked is: Who do these professionals represent? It is a question born of a deep distrust of the “neoliberal” institutions created from the 1990’s until 2018. 

The judicial reform has been by far the most polarising of these changes because opponents see it as an imposition by Morena to co-opt the last independent branch of government. Meanwhile, supporters of the reform see the judiciary as the last reactionary and anti-democratic bastion, which they were given a mandate to overhaul after receiving a big, constitution-changing majority in the last election.

How Mexico’s future judiciary will work

If approved, the reform will replace the existing federal judiciary with a completely new one by 2027. Local levels will eventually have to adopt these measures too. These new judges and magistrates will be voted on directly by the citizenry, but everyday Mexicans will be but the final electors. 

The road to the ballot for a judge or magistrate will start with the three branches of government. Each will form a committee that will assess the best candidates who will only be able to apply if they have got a minimum mark in their law degree, received recommendation letters from their neighbours, and other pre-requisites. What most entry level federal judges will not need is any actual work experience in the field. 

The Executive, the Judicial, and the Legislative branches will then have their longlists whittled down through a lottery. These will be the final names on the ballots. This may all seem simple enough, but the devil is in the details. 

Everyone, including the opposition and the large parts of the judiciary, agree that change is needed. They have even adopted the slogan “Yes to reform, but not like this.” Yet, the accusatory to and fro of the judicial debate has obfuscated what might be genuinely useful within the reform, what is problematic, and what is plain bad. 

Independence or impunity

At its core the reform tries to address the judicial branches’ perceived unresponsiveness to citizens’ needs by inserting their voice into the system via the ballot. Critics of the current system have accused the judiciary of becoming akin to a private club where judges are just responsive to private interests, including organised crime. 

The belief that many judges hire staff and are untroubled by accountability seems to have been backed up by various in depth investigations. Accusations of a web of nepotism, in which about half of the judiciary was found to be working alongside a at least one other close family member, have come to light. Another report uncovered hundreds of cases against judges and magistrates who had committed crimes—some as bad as corruption and sexual assault—which resulted in no more than a wrist slap. The worst punishment recorded was removal of judges from their post with no further consequences. In response to this, the reform creates a Tribunal of Judicial Discipline, which will separately assess judges’ and magistrates’ conduct.  

Elections are supposed to break these systems of unaccountability, but opponents of the reform believe the exact opposite will be achieved. In what has overnight become one of the most prominent protest movements of this administration, law students and professionals are out in the streets accusing the reform of destroying their “judicial careers.” They say that apart from being their livelihoods, this career had, over the preceding decades, created a professional class of experienced and well-versed lawyers who were relatively difficult to corrupt by undue outside influence—at least at the federal level—thanks to rigorous testing, meritocratic standards, and collegiate decision-making in the case of magistrates.

Direct elections, opponents argue, will open the judiciary to undue influence from politicians, business interests, and criminals. In partial reference to this issue, the reform has added a clause that those dealing with organised crime would become “blind judges.” Neither the accused or the accuser will even know who tried their case. Precedent in Italy or Peru does not bode well for this sort of measure though, which has ultimately often resulted in increased corruption and unaccountability. 

Judges pressured from outside influences would also face undue pressure from within, say critics. The newly formed Tribunal of Judicial Discipline would concentrate power in an equally corruptible new body—since the Tribunals will also be up for election, making them just as susceptible to undue influence. The result, they say, would be a more unfair and arbitrary justice system than the one Mexico already has. 

Unsolved issues and new nightmares 

The reform is virtually a fait accompli, but an unlikely glimmer of hope for those opposed to it remains. Those close to Claudia Sheinbaum worry that this massive and rushed change to the Mexican constitution might hamper the president-elect’s tenure before she’s even in office. Consequently, Sheinabum might look to delay its implementation.

Just organising the elections will be a logistical odyssey which, even in theory, presents serious issues. The ballot that the electorate will be presented with will be enormous. It would present the voter with a long list of names divided only by the branch of government they were proposed by. The unfortunate citizen will then have to write down the list of candidates of their choice. In a country where most do not know the name of their local mayor, the chances of electoral exhaustion and confusion are high.

All the while, the reform doesn’t solve the source of many of the issues faced by everyday people. The policing, detective work, and attorneys offices which Mexican justice depends on to make its final rulings are untouched by this reform. More often than not, it is their failings which result in the country’s worst miscarriages of justice—through corruption, or fabricated and lost evidence—which result both in innocents going to jail and the guilty going free.

Citizens, human rights organisations, and investors are all looking on in fear. Businesses are planning to put their Mexican operations through costly “full-body” due diligence regimes to make sure they won’t be exposed under the new judicial system. Others are changing their contracts to avoid the justice system altogether, opting for private arbitration instead. 

As with Mexico’s crisis of violence and unfulfilled economic potential, the tragedy isn’t so much that the transformation of the Judicial branch will take Mexico down an even darker path; it is that none of the changes in the current reform alter the course the country is already on.