(C) Common Dreams
This story was originally published by Common Dreams and is unaltered.
. . . . . . . . . .



Statement expressing concern about the proposal to reform the Mexican Judiciary [1]

[]

Date: 2024-09

Traducción al español disponible aquí

SUMMARY

The New York City Bar Association has expressed, in a new report, serious concern regarding a proposal by outgoing Mexican President Andrés Manuel López Obrador to overhaul Mexico’s judicial selection process. The reform “can have the adverse effect of seriously harming the independence of Mexico’s judiciary,” the report says.

The report outlines Mr. López Obrador’s history of attacks on the independence of Mexico’s judiciary, reviews the substance of his proposed changes, and “urges President López Obrador and President-elect Claudia Sheinbaum to recognize the importance of an independent judiciary for the rule of law and to respect judicial independence consistent with international law and Mexico’s international commitments.”

“The current proposal carries risks that could undermine the impartiality and effectiveness of the judiciary,” the report says.

REPORT

STATEMENT EXPRESSING CONCERN ABOUT THE PROPOSAL TO REFORM THE MEXICAN JUDICIARY

The New York City Bar Association[1] (City Bar) once again expresses its concern about the independence of Mexico’s judiciary. Outgoing President Andrés Manuel López Obrador proposed a constitutional amendment that would overhaul Mexico’s judicial selection process.[2] There is serious concern surrounding the mechanisms for implementing these proposed changes to the Mexican judicial system, which can have the adverse effect of seriously harming the independence of Mexico’s judiciary.

In 2011, the United Nations Special Rapporteur on the Independence of Judges and Lawyers reported on the independence of judges and lawyers in Mexico and concluded that, generally, while the federal judiciary in Mexico was largely independent and impartial, individual state courts left much to be desired.[3] The Executive branch routinely interfered in state courts’ judicial appointment process.

More than a decade later, the current Mexican government is attempting to promote a judicial reform that threatens to undermine the institutional conditions that protect human rights, provide impartial access to justice, and preserve the rule of law.[4] The motivation behind the proposed constitutional amendment is the President’s discontent with Supreme Court decisions overturning some of his priority policies and legal reforms.[5]

The City Bar opposes any action by the Mexican government that compromises the judiciary’s independence.

I. BACKGROUND

On August 1, 2022, the City Bar issued its first statement of concern on Mexico[6] following President López Obrador’s remarks during his daily press conferences, particularly his announcement of the investigation of a federal judge for issuing a temporary injunction in a case involving the government.[7]

On April 24, 2023, the City Bar issued a second statement describing a series of events involving President López Obrador and his criticisms and attacks on the judiciary, mainly targeting the newly appointed Supreme Court Chief Justice, Justice Norma Piña. These attacks included false claims of corruption, accusations of judicial decisions against the “public interest,” and statements undermining respect for and independence of the judiciary.[8]

After April 2023, the attacks from President López Obrador continued. These attacks were directed towards Chief Justice Piña and judges deciding cases against the president’s interests.[9]

On October 12, 2023, President López Obrador’s party approved in Congress the liquidation of several trusts of the federal judiciary, including one securing pensions and health insurance for over 55,000 of the federal judiciary’s employees. Justice Javier Laynez suspended this decision in December 2023, following over 500 constitutional actions filed against the liquidation.[10] President López Obrador publicly criticized Justice Laynez for his ruling.[11]

In June 2024, President López Obrador argued that judicial reform was necessary to clean up the judiciary’s reputation and provide confidence to investors—as opposed to the Mexican people. He also suggested that judges serve a “minority” without identifying who that minority is.[12]

On June 14, 2024, the Federal Congress approved an amendment to article 148 of the Amparo Law[13] proposed by President López Obrador’s party, prohibiting federal judges from granting general suspensions as part of amparo rulings.[14] In so doing, Congress eliminated the ability of federal judges to grant a stay at an Amparo when they believe that denying such measure would be worse for the public order and social interest than to grant it.[15]

Now, President López Obrador is pushing for a judiciary reform that includes the popular election of judges, a reduction in the number of Supreme Court justices, the creation of a separate judicial administration body, and other changes that are generating controversy due to the risks of politicization and weakening of the federal judiciary, and the economic uncertainty it may entail.[16]

President López Obrador argues that the current due process system is flawed, as drug traffickers are frequently released due to significant influence and corruption. President López Obrador believes that electing judges could address these issues. He suggests that such a reform would “clean up and purify” the judiciary, benefiting everyone. He emphasizes that this change would not harm the public or negatively impact the country’s public life.[17]

While every country can decide how judges are appointed, the focus of the City Bar’s current concern is ensuring that any reforms are carefully thought out, with the aim of respecting and complying with both international and regional standards to guarantee the judiciary’s independence.

On July 29, 2024, Margaret Satterthwaite, United Nations Special Rapporteur on the Independence of Judges and Lawyers, published a communication sent to the Mexican Government, which expressed her serious concerns, comments, and suggestions on the constitutional amendment proposal submitted in February 2024 by President López Obrador. The Special Rapporteur stated that several proposals have compatibility issues with international standards.[18] President López Obrador dismissed the Special Rapporteur’s communication, stating that Mexico is ruled by its constitution and that the UN lacks the legitimacy to intervene.[19]

II. PROPOSED CHANGES

The Wilson Center summarizes the main intended changes of the reform as follows:[20]

Supreme Court new composition: Justices would be directly elected by popular vote by 2025, with a 60-day campaigning period. Their number would decrease from 11 to 9, and their term reduced from 15 years to 12. Election of judges by popular vote: The scope of the popular vote for judges is yet to be defined, possibly affecting only the federal judiciary, which includes about 1,600 judges. Federal judges will end their terms when newly elected officials take office. Details such as professional qualifications for nominees and election procedures, including funding and campaigning, remain unclear. Substitution of the Federal Judiciary Council (CJF): The CJF, which oversees the supervision and discipline of judges and ensures autonomy, objectivity and professionalism, would be replaced by two new bodies: the i) Judicial Administration Body comprising five members appointed by the president to oversee the judicial branch’s administration, judicial career, and internal control; and ii) the Court of Judicial Discipline, consisting of five members elected by popular vote for a 6-year term to investigate and sanction public servants within the judiciary, constituting itself as an agent of political control with the power to remove and constrain judges.

On August 16, the Constitutional Affairs Committee of the Mexican Congress published its analysis of the bill and proposed text for consideration by members of congress, discussion, and vote.[21] Although the original bill underwent over a hundred changes, the main points remained. Among the most important changes, the text now includes an “Evaluation Committee” to ensure candidates have knowledge, honesty, and a professional background. The proposed text also includes a two-phase process to elect Supreme Court Justices and vacant positions for federal judges in 2025 and the rest in 2027. This new text is supposed to include observations from civil society.[22]

This statement focuses on two topics: (a) the election of judges and (b) a new sanctioning body.

A. Election of Judges

Currently, to appoint justices of the Supreme Court, according to Article 96 of the Mexican Constitution, the President nominates three candidates for each vacancy, with the Senate being responsible for appointing one of them. The bill seeks to modify this appointment mechanism by creating a direct and secret election process through which citizens would elect the Supreme Court justices.[23]

The same popular election process is proposed for all federal judges and magistrates. More than 1,600 judicial positions would go to the ballots, for which thousands of lawyers can apply.[24] The proposal provides very general criteria for selecting the candidates proposed by the President, Congress, and Supreme Court. Moreover, the “Evaluation Committees” will be comprised of members of the same branches of government.

The main issue with the bill is its lack of clarity with respect to providing a minimum set of standards for judicial candidates or judicial selection. Although international law does not establish a specific mechanism for selecting judges—and indeed many jurisdictions (New York among them) elect members of the judiciary—international law recognizes certain minimum requirements that must be met to ensure an independent judiciary. These requirements include that selection methods be public, objective, and fair; that they are based on merit, particularly concerning qualifications, integrity, capacity, efficiency, impartiality, and independence; and that they are transparent and accessible.[25]

The Basic Principles on the Independence of the Judiciary require that “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives.”[26] The Inter-American System on Human Rights jurisprudence establishes the goal of any process to appoint judges, which should be selecting candidates based on merit and professional capacity.[27] The Inter-American System has considered that persons of integrity, suitability, and appropriate legal training or qualifications should be chosen based on personal merit.[28] Furthermore, the Inter-American Commission on Human Rights has expressed concern about appointment processes motivated by political considerations.[29] The Inter-American Court of Human Rights has stated in several cases that judges, unlike other public officials, have specific guarantees due to the necessary independence of the Judiciary, which the Court has understood as “essential for the exercise of the judicial function.”[30]

The Inter-American Court has indicated that the autonomous exercise of the judicial function must be guaranteed by the State both in its institutional aspect: that is, about the Judicial Branch as a system, as well as in connection with its subjective aspect, that is, related to the person and qualifications of the specific judge.[31]

The Bangalore Principles of Judicial Conduct state a judge must be independent of society and not establish inappropriate connections with the executive or legislative branches of government or any other influence.[32]

Hence, a proper appointment process is essential to ensure that judges are not subject to external pressure. UN Special Rapporteur Satterthwaite has eloquently stated:

The proposed amendments lack a transparent, independent, and accessible mechanism allowing an independent authority to verify whether candidates meet the requirements of training, aptitude, and integrity. On the contrary, the reform initiative transfers to the Senate the responsibility of verifying that candidates for Circuit and District Judges meet the eligibility requirements of Article 95 of the Constitution. By attributing this responsibility to a political entity such as the Senate, the reform initiative does not ensure the effective participation of civil society in the candidate selection process. As highlighted in the last report of this mandate, laws or practices that establish more direct functions for the executive and legislative branches in judicial selection processes increase the risk of political capture of the judicial branch. By assigning the Senate the task of verifying whether candidates meet constitutional and legal eligibility requirements, the reform would allow for an increase in the influence of the Legislative Branch in the judicial selection process.[33]

The lack of mechanisms to comply with these international standards raises concerns about the compatibility between the reform and Mexico’s international obligations under international human rights instruments. According to the American Convention on Human Rights (arts. 8.1, 25) and the International Covenant on Civil and Political Rights (art. 14), both ratified by Mexico, every person has the right to be heard with due guarantees by a “competent, independent and impartial” court.

According to President López Obrador, his judicial reform seeks to combat corruption in the judiciary and improve access to justice for all citizens. However, President López Obrador has failed to provide empirical evidence or data that support changing the current process to appoint judges or explaining how the proposed changes would effectively combat corruption.

Several national and international organizations have expressed concern, noting that the strength of the federal judicial civil service could be lost by replacing experienced public officials with elected inexperienced officials. Without the expertise and professionalization of highly trained judges, access to justice, particularly for the most vulnerable groups, could be seriously affected.

Federal judges and magistrates have voiced their opposition to the proposed amendment. According to Juana Fuentes Velázquez, director of the National Association of Circuit and District Judges (JUFED), the judicial reform proposed by the federal executive “seeks to dissolve the Judiciary, undermine its independence, and leave millions of Mexicans defenseless.”[34]

The Inter-American Dialogue, the Stanford Law School Rule of Law Impact Laboratory, and the Mexican Bar Association presented an analysis stating that the constitutional reform initiative presented by President Andrés Manuel López Obrador, which contemplates electing by vote justices of the Supreme Court and other federal judges, among other measures, constitutes a direct threat to judicial independence, endangers the rights of minorities, and is contrary to international standards on the independence and impartiality of the judiciary.[35]

The US Drug Enforcement Administration (DEA) has expressed concern about how this reform could open the door to the influence of organized crime in the judiciary.[36] This specific concern is related to previous experience with organized crime groups trying to influence the result of the elections in Mexico.[37]

Researchers and academics from prestigious universities in Mexico, such as UNAM, have underscored that the proposed rules could lead to a highly politicized process in which political party interests will prevail over technical and professional criteria. Due to the Senate’s role in determining eligibility requisites, the new design can generate an “electoral logic” in the functioning of the judiciary, thereby jeopardizing the principles of autonomy and impartiality.[38] There are not many examples of elected judges in Latin America. Bolivia adopted this selection model through universal suffrage for the higher courts in 2009. In these 15 years, problems have arisen in the functioning of the judicial system, and the public shows little interest in participating, with null vote percentages around 60%.[39]

The “Assessment on the Independence of the Bolivian Judicial System,” prepared by the Cyrus R. Vance Center for International Justice of the New York City Bar Association and the Latin American Federation of Magistrates, concluded that the election of judges to higher courts in Bolivia is problematic, among other reasons, due to the high political influence.[40]

B. A New Sanctioning Body

The proposed constitutional reform envisages the creation of a Judicial Discipline Tribunal within the federal judiciary, which would replace the current Federal Judicial Council in matters of disciplinary proceedings. This new disciplinary body would be composed of five members, directly elected by the citizens, after a nomination process in which the federal executive, legislative, and judiciary branches would participate. They would serve for six years, being replaced on a staggered basis, with no option for re-election.

The Judicial Disciplinary Tribunal would be responsible for investigating and sanctioning misconduct by judicial officials (including Supreme Court justices). Under the text presented for discussion, misconduct includes “acts or omissions contrary to the law, or the proper administration of justice, or principles of objectivity, impartiality, independence, professionalism, excellence, as well as other matters determined by law.”

The Inter-American system has developed jurisprudence for judges’ disciplinary proceedings, warning that controls of the activity of justice operators based on criteria of discretion or political reasons, by their very nature, are contrary to the guarantees of independence and impartiality that must be observed in disciplinary proceedings following international law.[41] Additionally, the Inter-American system has set standards against grounds used to initiate such proceedings that are broad or vague, as may be problematic for compliance with the principle of legality.[42]

Following the standards, the proposed amendment includes elements that would violate international human rights standards fundamentally guaranteeing an independent and impartial judiciary. The vagueness of the bases for disciplinary action would directly violate Mexico’s international obligations.

The UN Special Rapporteur underscores that:

States have a duty to establish clear grounds for removing judges from office, as well as adequate procedures for this purpose.

Civil society organizations in Mexico have raised concerns that the popular election of the members of the Disciplinary Judicial Tribunal would be based on political considerations rather than on their professional and ethical competence. This could lead to the inclusion of members with specific political affinities, compromising the disciplinary body’s independence and ability to make impartial decisions.[43]

The disciplinary process could, therefore, become a political instrument that could be used against judges who issue decisions contrary to the government’s interests, considering also the motivation for proposing the reform. The politicization of the selection process could expose the members of the Disciplinary Tribunal to political pressure from groups or parties that supported them during their election and financed their election.

In addition, the possibility that the term of office of the Tribunal coincides with the presidential cycle suggests that the election of its members could inevitably be influenced by the political and partisan preferences prevailing during the presidential elections, with the risk of transforming the election of its members into a projection of the political agenda, undermining the independence of the disciplinary authority.

On August 19, 2024, over 55,000 employees of the federal judiciary went on strike saying the reforms would threaten their working conditions, benefits and salaries.[44] The same day, the Association of Federal Judges and Magistrates announced a strike starting August 21, 2024.[45]

III. NEW YORK CITY BAR ASSOCIATION CALLS ON MEXICAN AUTHORITIES TO RESPECT JUDICIAL INDEPENDENCE

The City Bar urges President López Obrador and President-elect Claudia Sheinbaum to recognize the importance of an independent judiciary for the rule of law and to respect judicial independence consistent with international law and Mexico’s international commitments. Mexico’s proposed judicial reform has sparked significant debate and concern among various sectors of Mexican society. It raises critical questions about the potential politicization of the judiciary, the reduction in judicial independence, and the efficiency of the judicial system.

The current proposal carries risks that could undermine the impartiality and effectiveness of the judiciary. Furthermore, the judiciary’s institutional weakening can create a significant power imbalance in its relationship with the executive and legislative branches, affecting the factors that maintain checks and balances in the operation of the Mexican State. This can jeopardize fundamental democratic conditions, eroding the protection of individual liberties and the preservation of impartial oversight of political power. Moreover, the work of lawyers requires legal certainty that a weak judiciary cannot provide. A partisan judiciary will affect business, investment opportunities, and economic development.

The City Bar strongly urges the Mexican government to carefully consider all concerns raised by these civic organizations—including civil society, academia, and national and international experts, like the UN Special Rapporteur—and hold a broad and transparent debate process weighing the merits of changes to the judiciary. Listening and incorporating plural perspectives in the public debate and the decision-making process of the reform will contribute to ensuring that any reforms strengthen rather than weaken the judicial system, preserving its independence and the public’s trust in its ability to deliver fair and timely justice.

Cyrus R. Vance Center for International Justice

Jaime Chávez Alor, Associate Executive Director/Member, Inter-American Affairs Committee and Task Force on the Independence of Lawyers and Judges

Task Force on the Independence of Lawyers and Judges

Christopher Pioch, Chair

Inter-American Affairs Committee

Jessenia Vazcones-Yagual, Chair

August 2024

[END]
---
[1] Url: https://www.nycbar.org/reports/statement-expressing-concern-about-the-proposal-to-reform-the-mexican-judiciary/

Published and (C) by Common Dreams
Content appears here under this condition or license: Creative Commons CC BY-NC-ND 3.0..

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/commondreams/

You are viewing proxied material from magical.fish. The copyright of proxied material belongs to its original authors. Any comments or complaints in relation to proxied material should be directed to the original authors of the content concerned. Please see the disclaimer for more details.