Less than a month after leaving office, Mexican President Andrés Manuel López Obrador has successfully pushed through his ambitious reform of a judiciary he considered “rotten.” The initiative includes the controversial popular election of judges and magistrates and has led to an unprecedented strike in the judiciary and street protests. Critics say it is the end of the separation of powers.
The ruling party, Morena, and its allies needed only one more vote in the Senate to pass the text with a two-thirds qualified majority, which requires a constitutional amendment. It was opposition senator Miguel Ángel Yunes, of the PAN, who allowed the reform to advance in the Senate after about 12 hours of intense debate, interrupted by the irruption of protesters in the plenary session, which forced a change of headquarters.
The previous week, the deputies had to meet on a sports field because hundreds of protesters prevented them from accessing the Congress building. This was the first task of these new chambers, which began their sessions in September. Now it is time for at least 17 of the 32 states that make up the country to ratify it, a simple procedure before the political map of Mexico left after the last elections. President-elect Claudia Sheinbaum will have the arduous task of implementing it without many international references. In the United States, some local judges are elected and in Bolivia, in the last 15 years, 26 senior officials have been elected.
Here are some keys to understanding the reform:
AMLO's quarrels and justice
“The dispensers of justice must serve the people, their causes and their mandates, and not, as is currently the case, operate under the banner of benefiting political and economic groups or factions, or even under the banner of criminal interests,” said López Obrador a few years ago in his fifth annual government report, in which he announced that he would send a reform of the judiciary to Congress.
During the six-year term, the ministers of the Supreme Court of Justice of the Nation, the highest judicial body in the country, have reversed several reforms of the president after they were adopted by Congress, where he had and continues to have the majority. One of the most notable was the initiative to reduce the budget and functions of the National Electoral Institute. He also canceled the decree that guaranteed that some of its main infrastructures were national security projects, such as the Maya tourist train, in the Yucatan Peninsula, which environmentalists opposed.
“We have already lost ground. She has always been far from the people and close to power, but now she is shamelessly at the service of the potentates, of the oligarchy,” López Obrador said in one of his morning press conferences, in which he also attacked his president, Norma Piña, who stressed that “she has always voted against the initiatives that we have defended.”
For analyst Fernando Dworak, this is political revenge. “Like any personalist leader, he defends democracy as long as its institutions and procedures say what he wants to hear. Otherwise, he will attack them and has the moral authority to assert himself before a majority,” he says.
López Obrador leaves office with more than 60% approval rating according to various polls and the reform is part of a package of 20 measures aimed at modifying the Constitution and protecting his political legacy from his successor.
Judges at the polls and judges without “faces”
At the heart of the controversy is the replacement of the judicial career and oppositions by the direct vote of citizens at the ballot box. Nearly 2,000 judges, magistrates and 11 ministers of the Supreme Court will have to stand for election, one in 2025 and another in 2027, to renew all their positions. The initial 11,000 candidates will then have to pass the selection of the three powers and a draw to access the ballot in which there will be six per place.
The requirements are also reduced. A law degree with an average of eight, five years of experience and five letters of recommendation from colleagues or even neighbors will only be necessary to be able to apply. For Maria Emilia Molina, magistrate and president of the Mexican Association of Women Judges, this profile does not guarantee the administration of justice and impartiality. “The learning curve is long, we currently have an average of 15 years of career to get there. Eliminating those of us who are already in office and replacing us with people who do not have experience or technical training in the different areas of law is a risk for citizens,” he emphasizes.
In addition, since the reform provides that they will not be able to receive public or private funding, many fear that organized crime or political parties will secretly finance campaigns and thus sneak into the judicial system. “When we attend a football match, we see the fans of both teams but never the referees because they are not popular but necessary,” Molina illustrates. “It cannot be that judges focus more on re-election than on providing justice to the most vulnerable groups, which is fundamentally what we do when we resolve amparos.”
Another of the most controversial aspects of the reform is that of the “faceless judges”, with which they aim to protect from violence and anonymity the trial processes related to organized crime. This idea is not new, in 2010 President Felipe Calderón, who launched the war on drugs, tried unsuccessfully to introduce this figure from the Italy of the mafia of the 90s and which has been used in Colombia, Peru and El Salvador. Both the United Nations Human Rights Committee and the Inter-American Court of Human Rights have ruled in the past on specific cases in these countries, denouncing arbitrary detentions, torture and the lack of fair trial.
On the other hand, López Obrador has always had austerity and the fight against corruption as guides of his policy and in this line he has included the reduction of the benefits granted to the members of the Supreme Court and a new disciplinary court to investigate internal irregularities whose members would be elected by the other two powers, which means that, for Molina, they run the risk of being at the service of political interests.
Protests in the streets and an unprecedented strike in the justice system
“The reform threatens the independence of the judiciary. Democracy has nothing to do with impartiality. “You have to choose who protects your justice and not who the population wants.” Isabel Sánchez is a lawyer and marched with a megaphone in her hand shouting slogans with a group of colleagues in a Sunday march against the reform. The proposal shook the streets, with several demonstrations a week in different contexts: law students in universities, Congress, Senate, different organs of the judiciary…
But it has also revolutionized the courts. Since last August 19, thousands of workers from the Federation's judiciary have paralyzed the courts, albeit with minimal services, in different states of the country. They fear that their labor rights will be affected by the reform. López Obrador has called this strike illegal and has threatened to stop paying those who participate. Federal judges and the Supreme Court have subsequently joined this strike.
Who is against and who is for?
The UN Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, sent a letter to López Obrador in which she stressed that this could “undermine the independence of the judiciary” and that “access to an independent and impartial” judicial system is an essential human right.
She was not alone. The United States and Canada are Mexico's main trading partners, with which Mexico has signed a free trade agreement that will have to be revised in a few years. The ambassadors of both countries gave press conferences on the same day to present a common concern: that the judicial reform poses a risk to democracy and the separation of powers and that the possible lack of impartiality would endanger foreign investment. The markets have already anticipated this and the peso is falling against the dollar. Chambers of commerce and business have also taken a position against the measure and the National Association of Circuit and District Judges of the Federal Judicial Power has requested that its constitutionality be investigated.
In addition to a majority in the chambers and strong popular support, López Obrador has two allies in the Supreme Court. Ministers Lenia Batres and Loretta Ortiz have been vocal advocates for reform. “We see in Mexico a costly, elitist judicial and judiciary system that has strong racist, classist and sexist biases, a lot of prejudice and corruption,” Batres said at a rally in front of hundreds of university students demonstrating in favor of reform outside the headquarters of the highest court.
The problems of Mexican justice
“The judicial system is rotten, it no longer represents the people,” insisted López Obrador. According to the Corruption Perception Index prepared by Transparency International, almost 60% of the population does not trust the justice system. However, the reform does not affect the entire system: the local level, the police and the prosecutors' offices (dependent on the executive branch) are left aside and 80% of the procedures in the country fall to them. This is where the greatest cases of corruption and lack of diligence occur, experts point out, which they attribute to the lack of resources and preparation.
Nor does it solve the country's virtually total impunity. Lack of access to justice is another of its main problems: 90% of cases do not reach the courts, and when they do, it takes between three and five years to resolve them. In addition, two out of five people are in prison without having been convicted, according to the national census of the penitentiary system.
The proposal put on the table the need for transformation, but many, inside and outside the judicial system, suggest that this is not it. In an exercise of self-criticism and as an attempt at salvation, the president of the Supreme Court of Justice of the Nation, Norma Piña, presented an alternative reform on Sunday and stressed that “the demolition of the judiciary is not the way forward.” , as expected.