Constitutional reform to Mexico's judicial branch

Authors: Norton Rose Fulbright Mexico

After months of discussion, and once approved by Mexico's Federal Congress and the majority of local Congresses, on September 15, 2024, the Federal Executive Branch published a reform to the Mexican Constitution that directly impacts the organizational structure, administration and operation of the Federal Judicial Branch (the "Reform").

Contents of the reform

Direct election of federal judges

One of the main guiding principles of the Reform is the "democratization" of the Judicial Branch at the Federal level. The Reform provides that federal judicial positions, including Supreme Court of Justice of the Nation (“Supreme Court”) Justices, Circuit and District Judges, will be elected by popular vote in direct and secret election processes. The Reform gets rid of the traditional “judicial career”, that in summary, entailed the promotion and advancement of judiciary personnel considering tenure and successful examinations.

Among others, the Reform details the requirements to be met by candidates to judicial positions, which are objectively more lenient than those considered prior to the Reform. The candidates will be jointly appointed by committees formed by representatives of the three branches of government. Considering that the ruling party and its political allies hold the majority in the current Legislative branch, it is hard to expect that candidates other than those favored by the Executive branch and the ruling party, will be able to run in the election processes.

In addition candidates for key positions in the Judicial Branch being essentially pre-selected by the Executive and Legislative branches, the proposed election system is not abundantly clear, and although the Reform intends to establish objective criteria for candidates to be able to run for judicial positions, this system has been criticized as it does not guarantee relevant legal expertise of candidates.

Prior to the Reform, a federal judge generally followed the traditional judicial career path, beginning his or her career in entry-level positions such as court clerks until eventually being sworn as judges after successful competitive examinations. Although this system was not without faults, it sought to guarantee judges having legal expertise and objective knowledge of all areas of the justice administration system.

However, with the Reform, any licensed attorney with academic results slightly above average and three years of expertise in “legal areas relevant to the position being sought” could be elected for a federal judicial position as high as a Circuit or District Judge.

On the other hand, arguably, getting rid of the traditional judicial career was not a necessary step for the purported “democratization” of the judicial branch, since the former system already considered an indirect democratic process for key judicial positions (e.g., under the former rules, the President submitted for the approval of the Senate candidates for Supreme Court Justices).

In our opinion, the Reform simply fails to consider the fact that judges are not, nor should they ever be, representatives of the people, and their allegiance is not to the people that voted for them, but to impartiality and the rule of law. The implementation of the Reform, far from solving the existing shortcomings in the judicial system, weakens the system of checks and balances that is the cornerstone of a trias politica (separation of powers) system, and creates obvious conflicts of interest in the administration of justice such as in the case of a dispute between private parties and authorities.

The Reform provides that the current judges will be removed upon the new judges being elected. During 2025, all of the following are to be elected: all Supreme Court Justices, vacant positions in the Superior Chamber of the Electoral Tribunal, all of the Magistrates of the regional chambers of the Electoral Tribunal, members of the new Judicial Disciplinary Tribunal, as well as half of the positions for Circuit and District Judges. The remaining positions for Circuit and District Judges will be voted in the 2027 federal electoral process.

The Supreme Court Justices, the Magistrates of the Superior Chamber of the Electoral Tribunal and the Disciplinary Tribunal will be elected throughout nationwide elections. Circuit and District Judges will be elected in each of the 32 judicial circuits.

In addition to the lack of clarity in the internal processes for the pre-selection of candidates, which seems to be designed to benefit the ruling party, there is great uncertainty as to how the electoral processes for the election of more than 1,600 federal judges will be conducted. This, is in addition to the local judges that will have to be elected after local Congresses complete the harmonization of the Reform with local regulation. Due to the large number of candidates and positions to be elected, the National Electoral Institute will face an enormous challenge to ensure and guarantee the reliability, certainty and legitimacy of these electoral processes.

Moreover, it seems ambitious to think that the Mexican voters will be properly informed about the proposals, career, profile, absence of conflicts, and expertise of even a minority of the candidates for federal judges to be voted.

Changes in the Supreme Court reform

The number of Supreme Court Justices will be reduced from 11 to 9, and each will serve for a term of 12 years. The Supreme Court will meet only in plenary session, replacing the bicameral system that existed prior to the Reform.

The Supreme Court will no longer be able to grant injunctions in constitutional control claims, and rulings issued as part of amparo claims challenging new laws, may not be granted with erga omnes (general) effects. This entails that, even if a law passed by Congress is deemed to be contrary to the Mexican Constitution, a constitutional control claim would need to be conclusively resolved for such law to cease. This creates a number of potentially problematic scenarios, including the fact that authorities could technically continue to apply a law that is contrary to the Mexican Constitution, in some cases with legal or material irreversible effects.

As a result of the reduction in the number of Justices, the Supreme Court will require the vote of 6 out of 9 of its members to issue a general declaration of unconstitutionality or to set mandatory precedents for all federal and local judicial authorities.

The new Judicial Disciplinary Tribunal; new resource management agency

The Reform removes the Federal Judiciary Council, to be replaced by the Judicial Disciplinary Tribunal and a new agency for administrative matters.

The new Judicial Disciplinary Tribunal will be entrusted with investigating and imposing penalties on personnel of the Federal Judicial Branch, filing criminal charges against any judicial officer, as well as petitioning impeachment proceedings against the members of the Supreme Court before the Legislative Branch. The Judicial Disciplinary Tribunal will be integrated by 5 Magistrates, who will be elected by popular vote and will serve a term of 6 years.

This Judicial Disciplinary Tribunal will arguably be a tool for controlling judges, as unlike the previous Federal Judiciary Council, which sanctioned after the rulings of judges and tribunals, this new tribunal will be able to sanction judges at any time during a judicial proceeding, and its rulings will be conclusive and final, without any possibility of appeal for the judge being penalized. This will no doubt have an intimidating effect on judges.

The new administrative agency of the Federal Judiciary Branch will be responsible for managing the resources of the Federal Judiciary (previously entrusted to the Federal Judiciary Council). This new agency will be integrated by 5 members, 1 appointed by the President, 1 by the Senate through a supermajority vote, and 3 by the Supreme Court. These members will serve for a term of 6 years, and may not be reelected.

New deadlines for the resolution of tax and criminal cases

The Reform aims to address known problems of inefficiency and delays in the administration of justice. For example, when resolving tax disputes, the courts will have a maximum of 6 months  to resolve the matters (depending on the amount subject matter to the dispute). If no ruling is issued within this timeframe, the Judicial Disciplinary Tribunal must be notified and the court hearing the case will need to justify its delay.

Federal judiciary trusts and judge’s compensation

In line with the principles of austerity promoted by the leaving administration, the Reform provides that no judicial officer may have a compensation higher than that of the President. Likewise, the Federal Judicial Branch is prohibited from creating trusts and funds, unless expressly authorized by the Legislative Branch.

Implementing legislation and harmonization with local regulation

The Reform mandates that local Congresses and judicial branches make the necessary amendments to harmonize local regulations with the contents of the Reform, such that the principles of the Reform are replicated at the local level.

The transitory provisions of the Reform grant the Congress a period of 90 calendar days to implement the necessary amendments to the corresponding federal laws and to enact the corresponding secondary legislation. Likewise, transitory provisions of the Reform grant local Congresses a period of 180 calendar days to implement the necessary amendments to the local constitutions.

The Reform became effective on September 16, 2024.