Identifying the erosion of judicial independence is not necessarily a self-evident task. Akin to other forms of constitutional abuse, reform to the structure and powers of the judiciary is often draped in the cloth of democratic language. Reform may also stem from an attempt to address legitimate concerns regarding judicial misconduct or the wielding of seemingly unchecked power. However, paraphrasing Justice O’Connor’s remarks, it is possible to know judicial independence when you see it. In the case of Mexico’s latest judicial reform, the independence of the judiciary may very well be getting out of sight.
This essay relies on a two-pronged evaluation methodology to examine the dangers posed to judicial independence by Mexico’s judicial reform, particularly in light of the country’s commitments to international human rights law (“IHRL”). Mexico is a State Party to international treaties like the American Convention on Human Rights (“ACHR”) and the International Covenant on Civil and Political Rightswhich recognize the right to a fair trial, a right whose guarantee presupposes an independent judiciary. Furthermore, under its Contradicción de Tesis 293/2011ruling, the Mexican Supreme Court found Mexican judges to be bound by Inter-American Court of Human Rights (“IACtHR”) jurisprudence whenever it enhances the protection afforded by human rights norms. This obligation, which the Supreme Court considers to be derived from the pro personae principle enshrined in article 1 of the Mexican Constitution, applies even when Mexico is not the State Party directly bound by the specific IACtHR ruling.
The first element of this methodology consists of the normative analysis of two of the reform’s main provisions: i) the transition from a hybrid system of appointments, which contained components of career and recognition judiciaries, to one of popular election and ii) the replacement of Mexico’s judicial council by an administrative body and a Judicial Discipline Tribunal. Although these provisions’ contents are themselves cause for alarm, they are not the end of the analysis. While recognizing the right to a fair trial, IHRL does not impose specific mechanisms in which States must appoint judges and supervise their behavior to guarantee such a right. Therefore, a proper understanding of Mexico’s latest judicial reform would be incomplete without assessing the political context that begot it. The methodology’s second component will thus be to consider the degree to which the political actors responsible for the reform engaged in bad faith in restructuring Mexico’s judiciary.
Normative analysis of the reform
Mexico’s latest judicial reform is unprecedented in its attempt to reshape the judiciary in its entirety. Its provisions amount to a complete overhaul of the judiciary’s structure, powers, and functioning. However, this piece will only focus on the two previously mentioned provisions, as they are amongst the reform’s most consequential.
Firstly, under the reforms, Mexico will transition to an appointment system where all of the country’s judges will be popularly elected. This process will take place in two stages. The first is the 2025 special election where Mexico’s Supreme Court and half of the judiciary will be renewed. The second half of the judiciary will be renewed in 2027, coinciding with the country’s midterm elections.
Before the reform, Mexico followed a hybrid system of judicial organization, containing elements of both “career” and “recognition” models. For example, federal judiciary members would spend their careers within a kind of professionalized civil service and would be promoted internally according to merit. In contrast, appointments to the Supreme Court followed a recognition model, in which Justices would be appointed later in their careers and require a nomination by the President and approval by a two-thirds majority of the Senate. Appointments would thus be a recognition of a Justice’s previous career either as a judge or as a high-level bureaucrat, academic, or practitioner. Even though each state’s constitution determines its model of judicial organization, these mostly followed a hybrid approach along the lines described above.
The recent reform represents a stark departure from such a system. Articles 95 and 97 of the Constitution outline eligibility requirements for judicial office, while article 96 sets forth the method for selecting candidates. First, prospective candidates for judicial office must have practiced law for at least five years and graduated from law school with a GPA of 8/10 and 9/10 in the specific area of law in which they aspire to become judges. Second, each candidate must submit a three-page essay conveying their intention to participate in the race and five recommendation letters written by their neighbors, colleagues, or anyone who can account for their competency. Existing requirements —such as Mexican citizenship by birth, a minimum period of residency in the country, and the absence of a criminal record— remain in effect.
Each government branch will then appoint a committee to evaluate the candidates’ profiles based on their ethics, reputation, and professional and academic backgrounds. The committees then approve a list of candidates to be narrowed down via sortition. The resulting names will appear on the ballots. Under the reform’s provisions, previously appointed judges will have their tenures cut short. Although they are not required to undergo the committee’s selection process, they must nonetheless stand for office every nine years in an election to retain their positions –Supreme Court Justices differ from the rest of the judiciary in that they are appointed for twelve years without the possibility of being reelected. This contrasts with Mexico’s former model, in which judges would be subjected to a ratification process by the judicial council six years after their appointment, after which they would be granted tenure until retirement.
The second major change included in the reform is the supervision of judges’ behavior in office. Before the reform, the role of administering and overseeing the federal judiciary fell upon a judicial council composed predominantly of judges. These tasks will now be divided between two new government bodies: a) the Judicial Administration Body and b) the Judicial Discipline Tribunal. The Judicial Administration Body is charged with powers to organize and administer the judiciary analogous to those previously held by the extinguished judicial council. However, it is the Judicial Discipline Tribunal’s composition and powers that are disquieting from the perspective of judicial independence.
First, article 100 of the Constitution states that members of the Judicial Discipline Tribunal are popularly elected following the criteria and method described by articles 95 and 96. Second, it is entrusted with broad powers to oversee and sanction the judiciary’s members. The tribunal has the authority to receive complaints, investigate violations of the law, conduct administrative liability proceedings, assume jurisdiction over serious offenses, order precautionary and enforcement measures, and impose sanctions on the judiciary’s members. Sanctions, which range from admonitions to dismissal from office, are to be imposed not only based on violations of the law but also on open-ended concepts such as objectivity, impartiality, independence, professionalism, or excellence.
From a normative standpoint, these provisions pose a serious threat to judicial independence and the right to a fair trial. Furthermore, Mexico’s judicial reform presents serious concerns regarding its conformity with international standards on judicial independence set by the IACtHR’s jurisprudence. An analogous Latin American example may be found in Bolivia’s system of judicial elections, which the United Nations Special Rapporteur on the independence of judges and lawyers (“Special Rapporteur”) has identified as insufficient to guarantee a judiciary free from political interference and ill-suited to ensuring the appointment of appropriate individuals to these positions.
Neither the ACHR nor IHRL more broadly impose upon States a specific system for appointing judges and overseeing their behavior in office. However, the IACtHR has, in light of Articles 8.1 and 25 of the ACHR, established certain guarantees that must be observed to ensure the independence of the judiciary and the right to a fair trial. As stated in the Case of Reverón Trujillo v. Venezuela, these include (i) an adequate appointment process, (ii) the tenure in the position –understood as the term of office of judges being adequately secured by law, and (iii) the guarantee against external pressures.
While appointments through judicial elections could have been gradually implemented as judges’ tenures naturally ended, the reform disrupted the fundamental conditions under which they were appointed. Even if judges are offered the opportunity to become candidates in elections to maintain their positions, it remains the case that many have already been formally ratified by the judicial council, thereby securing their tenure until retirement under the previous legal framework. While others were yet to be ratified in their positions, ensuring continuance in office will now depend on a new set of circumstances, such as proximity to political figures rather than the evaluation of their performance under technical metrics. The reform’s retroactive nature endangers tenure in the position as a guarantee of judicial independence.
The selection process preceding the election itself presents further cause for worry. Each system of judicial organization produces different incentives for judges, and the design of the appointment mechanism is perhaps the most important element in shaping incentives. In this case, the specific mechanism implemented through the reform creates both adverse selection and moral hazard problems.
On the one hand, the mechanism described does not offer sufficient guarantees that eventual candidates will be suitable for judicial office. Committees in charge of selecting candidates lack clear guidelines, allowing for too much discretion, especially considering the large number of prospective candidates who meet the minimum qualifications set by the Constitution. On the other hand, incentives for those who seek to advance their careers towards a more senior position are clear: they obtain their hypothetical candidacy from the government branches whose power they are often required to check. In a sense, a judge’s tenure will be marked by perpetual political campaigning. It is reasonable to predict that competition for proximity to political power will ensue between judges aspiring to be candidates for senior positions. Although, as Chief Justice Roberts once stated, “judges are not politicians, even when they come to the bench by way of the ballot.” Mexico’s latest judicial reform directly challenges that notion.
The Judicial Discipline Tribunal’s broad powers and questionable appointment process further exacerbate the risks of external pressures. This tribunal has the potential to become a tool through which those with political power can control the behavior of judges seen as political enemies. In fact, Mexico’s Judicial Discipline Tribunal is reminiscent of the Polish Supreme Court’s Disciplinary Chamber, put in place by the PiS government with the purpose of subjugating the judicial system. Such courts, and the power they wield in disciplinary proceedings, can compromise judicial independence through coercive practices, thus creating a “chilling effect” that endangers the right to a fair trial. As in the Polish case, an analysis circumscribed to the provisions’ wording might be insufficient cause for alarm: grasping the seriousness of the threat they pose to judicial independence requires us to consider the political context that created the reform.
Bad faith in the behavior of political actors
In the Case of Herrera Ulloa v. Costa Rica, the IACtHR highlighted the importance of securing a mechanism of judicial independence that inspires legitimacy and confidence not only to parties in a specific dispute but also to society. The IACtHR reiterated the importance of said duty in the Case of Reverón Trujillo v. Venezuela, in which a judge was arbitrarily dismissed from her position due to alleged abuse of authority. Mexico’s latest judicial reform does not come close to maintaining the appropriate judicial independence. There is little doubt that political actors responsible for it engaged in bad faith behavior in their aim to upend the judiciary under similar pretenses of combatting unchecked judicial power.
It would be naïve to limit our analysis to the mere acknowledgement of the absence of an identified problem behind the judicial reform —something Mexico’s representatives admitted in a public hearing before the Inter-American Commission on Human Rights. On the contrary, the reform is adequately understood in the context of systematic attacks directed at the judiciary and broader democratic backsliding. The Special Rapporteur has taken notice of a growing trend of attacks on the rule of law and the independence of judicial systems by governments seeking to undermine democracy. It is also well-reported that the reform to the judiciary came as a response to Mexico’s Supreme Court after it invalidated several of the government’s high-profile legislative initiatives as unconstitutional.
The attempt to drape the reform in the cloth of democratic language is an effort to deceive the public of the reform’s true intentions. As argued by Justice Gutiérrez Ortiz Mena in his concurring and dissenting opinion in the Acción de Inconstitucionalidad 164/2024 ruling, the presence of bad faith in political processes constitutes an obstacle to popular oversight over the behavior of elected officials. Without good faith, political processes cannot be truly representative.
If the true aim of political actors is to upend the judiciary and, therefore, give place to a change in constitutional identity, it is their responsibility to identify it and engage in it in good faith. Aside from systematic attacks on the judiciary, Justice Gutiérrez Ortiz Mena expressed other indicators of bad faith. For example, the fact that the reform was approved in record time and without any form of deliberation by state legislatures or that judicial elections— which are formally non-partisan—are scheduled to coincide with elections for legislative and executive offices. These indicators illustrate an absence of the honest and responsible policymaking necessary to address the judiciary’s shortcomings properly. The process behind the reform was, in contrast, marked by a climate of political antagonism towards the judiciary and by a lack of robust political deliberation by popular representatives. After reviewing the reform’s context, there is but one possible conclusion to be reached: that the actors responsible for it engaged in their task in bad faith.
Conclusion
Mexico’s judicial reform follows a troubling pattern of governments engaging in constitutional abuse destined to weaken the judicial branch. Identifying such abuse must rely not only on a strictly normative analysis of a set of provisions but also account for the bad faith in which the actors behind it engaged. A methodology incorporating both elements of analysis is necessary to unmask those reforms that, far from addressing shortcomings and legitimate concerns regarding the judiciary’s behavior, seek to undermine its ability to provide a bulwark against governmental abuse.