CIVICUS discusses constitutional amendments affecting the judiciary in Mexico with Carlos Pelayo Moller, constitutional lawyer, human rights expert and Doctor of Laws from the National Autonomous University of Mexico.

Towards the end of his term in office, President Andrés Manuel López Obrador pushed through a package of constitutional amendments, with the chief change being the election of judges by popular vote. The proposal, approved on 15 September, sparked major protests by judges and judicial staff and caused diplomatic tensions with the USA. Its implementation remains in the hands of the new president, Claudia Sheinbaum, who represents the same party as her predecessor. The government argues the new measures will help fight corruption, but critics say it will consolidate presidential power and undermine judicial independence.

What have been the main changes affecting the judiciary?

One of the most important changes is the election of judges by popular vote at federal and state levels, breaking with the traditional system of appointments that, particularly at the federal level, was based on competition within the framework of a judicial career system. Those already in office will be subject to votes in two national elections scheduled for 2025 and 2027.

The constitutional amendments also cut the number of Supreme Court judges from 11 to nine, lower the requirements for people to occupy judicial positions and abolish life tenure for judges and magistrates.

Supposedly to protect them, another change is the concept of ‘faceless judges’, a policy providing anonymity for judges in organised crime cases. This is a deeply regressive measure that contravenes several international standards of due process and the consistent jurisprudence of the Inter-American Court of Human Rights. Another measure limits the general effects of provisional suspension or precautionary measures in amparo proceedings – judicial processes to protect constitutionally enshrined rights.

The Federal Judicial Council will be replaced by two new institutions: a Judicial Administration Body, which will be responsible for the management of the federal judiciary, and a Disciplinary Tribunal, which will investigate, prove and sanction misconduct.

The package drastically changes the way judges and magistrates are selected, operate and are monitored at federal and state levels. Despite its stated aim of democratising the judiciary, it seeks to undermine its independence.

Is there any recent experience of similar changes?

There have been several recent cases of far-reaching judicial reforms, not necessarily driven by a democratising spirit. These generally aim to reduce the powers and independence of the judiciary. However, attempts haven’t always been successful. In Israel, for example, Prime Minister Benjamin Netanyahu tried to push through a plan to reduce judicial independence, which sparked widespread protests. The Supreme Court overturned the proposals for being ‘grossly inappropriate’.

In Latin America, attempts to weaken the courts in relation to the executive have been frequent in countries including Argentina, Bolivia, Ecuador, El Salvador, Honduras, Guatemala, Nicaragua and Venezuela. These attempts have not been made by governments with a specific political ideology: they have been pushed with the aim of limiting or eliminating constitutional control systems by parties and movements on both right and left. When these attempts are successful, the judiciary becomes a mere appendage of the executive.

How have the Mexican judiciary, civil society and opposition reacted?

The speed with which the amendments were passed left little room for key stakeholders to react. The legal profession had little time to express its opposition, while in academia discussion forums were limited and had little impact.

Within the judiciary, reactions have been varied. Silence prevailed in state courts, with exceptions such as in Mexico City. In the federal judiciary, however, workers organised an indefinite strike in protest.

For its part, the political opposition, weakened after the June general election in which Sheinbaum won almost 60 per cent of the vote, spoke out strongly against the constitutional amendments in the Federal Congress. However, it has not yet managed to regroup effectively to face the challenges of implementation.

As for civil society, various organisations have expressed their concern with and opposition to the changes. However, the technical complexity of the package of changes has prevented a broad debate at the national level. The lack of dissemination of its content has limited public debate.

What are the next steps in implementation?

Implementation is proceeding at a very fast pace, possibly because the government wants to take advantage of the favourable political climate after the election. To date, all relevant secondary legislation has been passed and the positions to be elected in 2025 and 2027 have been selected by public lottery. The next step is to prepare the first elections and draw up a roadmap for the creation of the new institutions that will replace the Federal Judicial Council.

However, the jury is still out. The scenario could change if the Supreme Court responds to legal challenges filed by opposition political parties and numerous judges across Mexico by invalidating all or part of the amendments. However, no constitutional reform has ever been annulled in Mexico, so this could end up deepening the constitutional and political crisis.

The changes are unlikely to succeed in the absence of cooperation by members of the federal and state judiciaries. At present, there is widespread disapproval of what’s happening among the judiciary. Ideally, though unlikely, the federal government should convene a national dialogue to review the changes with the participation of all involved. But so far, the opposite has happened: the design and first phase of implementation of the changes have been improvised and have not included any instances of dialogue.

What will be the consequences of the changes?

This will completely reshape the federal and state judiciaries. Popular elections will radically change the profile of judges, magistrates and Supreme Court justices, making them less technical and more political, far removed from the tradition of career judges. Any citizen who meets minimum requirements, such as a law degree, a high enough academic grade and recommendations from neighbours and friends, will be eligible to apply. There won’t be an in-depth assessment of applicants’ aptitude. Current Supreme Court justices are being offered a lifetime pension if they resign before the deadline.

The emphasis on the supposedly democratising component of the changes distracts attention from the deeper problems of Mexico’s justice system, such as the inefficiency of prosecutors’ offices, police dysfunction and the complexity and excessive formalism of the legal system. Unless these structural problems are addressed, the ultimate goal of improving access to justice won’t be achieved.

Ultimately, it is the future of democracy in Mexico that’s at stake. Because democracy isn’t only about elections: it’s a way of life based on dialogue, respect for human rights and institutional checks and balances to prevent abuse of power, and this includes the full and independent functioning of the judiciary in all its areas of competence.