Authors: Norton Rose Fulbright Mexico
After months of discussion, and once approved by the Federal Congress and the majority of state legislatures, 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 Federal Judiciary. The Reform provides that Federal judicial positions, including Supreme Court justices , as well as Circuit and District judges, will be elected by popular vote in direct election processes. The Reform does away with the “traditional” career path in the Judiciary, which, in summary, entailed the promotion and advancement of judiciary personnel based on tenure and successful examinations.
Among others, the Reform sets forth the requirements to be satisfied by candidates to judicial positions, which are objectively more lenient than those in place 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 both Congress and the Senate, 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 to candidates for key positions in the Judicial Branch being essentially pre-selected by the Executive and Legislative branches, the proposed election system is not 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 any 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 as a Circuit or District Judge.
In our opinion, the Reform simply fails to consider the fact that judges are not, and should never be, representatives of the people, and their allegiance is not to the people that voted for them, but rather to the principle of 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 the separation of powers embedded in the Mexican Constitution, 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. All of the following positions will be elected in 2025: 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 elected in the 2027 federal electoral process.
Supreme Court justices and 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 legislatures 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 in the ballots.
Changes in the Supreme Court
The number of Supreme Court justices will be reduced from 11 to 9, and each will serve a term of 12 years. The Supreme Court will meet only in plenary session, replacing the bicameral system that existed prior to the Reform.
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 ruling of unconstitutionality or to set mandatory precedents for all Federal and state courts.
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 general effects. This entails that, even if a law passed by Congress is deemed to in violation of the Mexican Constitution, a constitutional control claim would need to be conclusively resolved for such law to cease effects. This creates a number of potentially problematic scenarios, including the fact that authorities could technically continue to apply a law that is in violation of the Mexican Constitution, in some cases with legal or material irreversible effects.
The new judicial disciplinary tribunal; new resource management agency
The Reform replaces the Federal Judiciary Council with the Judicial Disciplinary Tribunal and a new agency for administrative matters.
The new Judicial Disciplinary Tribunal will investigate and impose sanctions on personnel of the Federal Judiciary, file criminal charges against any judicial officer, and petition the impeachment of members of the Supreme Court by 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.
The Judicial Disciplinary Tribunal seems predestined to be a tool for controlling judges, as unlike the previous Federal Judiciary Council, which issued sanctions after rulings were issued, this new tribunal will be able to sanction judges at any time during a proceeding and its rulings will be conclusive and final, without any possibility of appeal. This will no doubt have an intimidating effect on judges.
The new administrative agency of the Federal Judiciary will be responsible for managing the its resources, a task that was previously entrusted to the Federal Judiciary Council. This new agency will be integrated by 5 members, one appointed by the President, one 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 rulings of tax and criminal cases
The Reform aims to address well-known problems of inefficiency and delays in the administration of justice. For example, for purposes of resolving tax disputes and depending on the amount of the dispute, the courts will have a maximum of 6 months to resolve the matter. 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 the delay.
Federal judiciary trusts and judge’s compensation
In line with the principles of austerity promoted by the outgoing President, 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 Congress a period of 90 calendar days to implement the necessary amendments to the corresponding federal laws and enact the corresponding secondary legislation. Likewise, transitory provisions of the Reform grant local legislatures a period of 180 calendar days to implement the necessary amendments to the local constitutions.
The Reform is effective as of September 16, 2024.
