Mexico’s Supreme Court of Justice houses a stunning mural by José Clemente Orozco with two representations of justice: one of them, with a sword, sleeps on a pedestal; while the other, with a scale, seems to be overwhelmed by (or participating in) a fight between thieves and/or lawyers. Although painted decades ago, the mural portrays current problems of the Mexican judiciary, such as its inefficiency and corruption. Under the pretext of combating these and other ills, the government of Andrés Manuel López Obrador promoted a judicial reform that imposed, among other things, the popular election of the vast majority of judicial authorities. 

Fragment of “La Justicia” by José Clemente Orozco, 1941. Sourced from https://privateviews.artlogic.net/2/4e59a0eaf2c655e2142572/

There are reasons to fear that this reform, approved in record time, will aggravate the current deficiencies of the justice system, and threaten the rule of law and democracy. Our fears are based on a recent investigation we wrote for Dejusticia (together with Carolina Villadiego) on the mechanisms for selecting high-level judicial authorities in Latin America, with case studies in Bolivia, Colombia and Guatemala. Although the text does not address the case of Mexico, we warn of the risks of several of the formulas included in the Mexican reform, such as: pre-selection dominated by political bodies; lack of judicial stability; and judges elected by popular vote and massively replaced. These formulas are especially problematic in a context of hyper-presidentialism such as Mexico (and Latin America more generally). 

Since the reform puts Mexican democracy in jeopardy and may have repercussions throughout the continent, it is vital that we are aware of its scope and dangers.

What is the reform of the Judiciary in Mexico? 

The reform focuses on introducing a judicial (pre)selection mechanism that is unique in the world: before, the (almost 7,000) judges of the federal and state judiciary were selected by different mechanisms; now, they will be elected by popular vote, from candidates proposed by the Executive, Legislative and Judicial branches. This is shown in the table below:

Source: prepared by the authors based on the Intersecta infographic. Sourced from https://x.com/intersectaorg/status/1833687424716685762

The reform also contains, among others, the following changes: 

• The requirements to be a judge in all instances will be lowered. 
• Current judges (including Supreme Court justices) will be dismissed, but will be eligible to run in popular elections.  
• A Judicial Disciplinary Tribunal (popularly elected) will be created with broad discretion to discipline judicial authorities. 
• There will be “faceless” judges; that is, with their identity protected in some cases. 

A judicial reform that does not address the real problems of the justice system

The Mexican judiciary has long-standing and deep-rooted problems. Above all, it has a long history of impunity, particularly in relation to crimes committed by organized crime and by the State itself. It also has poor access to justice due, for example, to high levels of judicial delinquency and the technical complexity of the tools (such as the “amparo” action) that should facilitate the activation of justice. It also has an inoperative judicial selection system in many state judiciaries, which has favored the politicization of the selection of high court judges. These and other problems (such as the clinging of the judiciary to its corporate privileges) set the stage for the current reform.  

Despite these shortcomings, the truth is that the previous model allowed for the consolidation of the career system in the federal judicial branches, and offered ample guarantees for the entry (and exercise) of independent, suitable and effective judges. The new model may ruin these strengths and worsen the pre-existing difficulties with profoundly anti-democratic consequences, as warned by the IACHR. Here are some examples: 

Independence and impartiality

The reform brings threats to judicial independence and impartiality in at least three ways: 

• The pre-selection scheme will make it easier for the Judiciary to be filled by people aligned with the Government and the dominant parties. 
• By relying on the citizen vote and being controlled by a politicized Disciplinary Tribunal, judicial personnel will hardly have guarantees to decide against the will of their constituents (e.g., in protection of minorities). 
• The popular election opens the door to the infiltration of organized crime, which could deploy its machineries and violent strategies to ensure that candidates loyal to its interests are elected.

Additionally, as Alma Beltrán and Puga explained, the reform will erase the extraordinary achievements of the Mexican judiciary in terms of the guarantees of independence, stability and parity of women judges through the judicial career system. 

Access to justice

The reform could seriously affect access to justice. For example, it is possible that the quality of justice will decrease because the pre-selection of candidates will be marked by political affinities, and not by merit and suitability. There are also serious doubts about the possibilities of reducing impunity when judges arrive at their positions owing favors to the most powerful sectors. There is also evidence of delays in judicial processes (especially criminal ones) when there is a change of judge. What will happen then when judges are replaced on a massive and periodic basis? It is foreseeable that the efficiency, quality and accessibility of justice will worsen.   

Legitimacy

Popular vote will not necessarily increase judicial legitimacy, for several reasons. First, under the proposed preselection scheme, the people will not be directly in charge of electing their judges. Ambrose Bierce’s satirical formula that “the elector enjoys the sacred privilege of voting for a candidate chosen by others” is fulfilled here. Moreover, the popular election of judicial authorities does not necessarily contribute to improving citizen confidence in justice and can bring, instead, multiple challenges. This is illustrated by the case of Bolivia, which until now was the only Latin American country with popularly elected judges.  

Bolivia: what have we learned about the popular election of judicial authorities? 

In Dejusticia’s research cited above, we studied the Bolivian case, where (since 2009) the highest judicial authorities are elected by popular vote from lists of candidates pre-selected by the Legislative Assembly. There we showed that popular election has not succeeded in depoliticizing justice or increasing its legitimacy, suggesting that Mexican judicial reform could face similar stumbling blocks. 

Thus, on the one hand, Bolivia intended to detach judicial selections from political and partisan dynamics. However, its effects have been the opposite, as the selections of high judicial authorities have become even more politicized, compromising their independence, transparency and suitability. For example, the most powerful partisan forces in the parliamentary commissions in charge of preselection have sought to have candidates chosen who are politically aligned with them. Additionally, the fact that the high judicial authorities are elected as a bloc has favored institutional capture and has facilitated the paralysis of justice through the blocking of judicial elections. 

On the other hand, the Bolivian model has not increased judicial legitimacy either, as at least two data indicate. First, the high proportion of invalid and blank votes, which have exceeded 50% of the votes in the two popular elections held so far. And, second, the persistent distrust of the judiciary by citizens: in both 2008 and 2023, 76% of Bolivians surveyed by Latinobarómetro said they had little or no confidence in the judiciary. 

The failures of the Bolivian experiment could be amplified in Mexico, not only because it is a larger country (in population and number of judges), but also because it has a highly popular government with parliamentary majorities. These conditions make it easier, in the name of democracy, for justice to be subjected to the powerful in power, as Roberto Gargarella put it.

The judicial crisis in Mexico and the region: a call to action

Orozco’s murals contain criticisms as well as calls to action. His image of Justice asleep on its pedestal is a call for the Mexican Judiciary to wake up and assume its duty to be accessible, transparent and effective. Moreover, since hope is the dream of the awakened (as Aristotle thought), the mural is a call for other actors interested in safeguarding the rule of justice to awaken as well. At the present juncture, this awakening implies that we must urge the Supreme Court to rigorously review the reform. Also, from local and international civil society, we should encourage monitoring and informed debate on what is happening. And, above all, there is much to demand from the new president, the Congress and the state congresses: they must all commit themselves to carefully regulate and progressively implement the reform, in order to mitigate its adverse effects.  

This reform is crucial not only because of Mexico’s socio-political and economic importance, but also because it can set the course for the judicial crises that beset other countries in the region. In any case, this Mexican experience has confirmed the urgency of resolving the historic problems of justice, but without undermining the pillars of human rights, the balance of powers and democracy itself. A fundamental lesson for the rest of Latin America.