Symposium on the Judicial Overhaul in Mexico Part 2: The Transition to Another Type of Constitutionalism in Mexico

—Roberto Niembro Ortega, UNAM

[Editors’ Note: This is Part 2 of a symposium on the recent constitutional amendments affecting the judiciary in Mexico. The introduction to the symposium can be found here.  The symposium pieces are cross-posted at ICONnect (in English) and at IberICONnect (in Spanish). We are grateful to Ana Micaela Alterio for her work in organizing the symposium.]

The lessons from the recently approved judicial reform are many and profound, so in this entry, I will limit myself to reflecting on one of them.

From my point of view, the judicial reform culminates the transition towards a new type of constitutionalism in Mexico that is characterized by being non-liberal, nationalist, majoritarian and hyper-presidentialist. This transition was made through an anachronistic constitutional reform procedure that no political force was interested in modifying in the past, perhaps assuming that its permanence in power was assured for a long time. It is an anachronistic procedure because it was designed in the 19th century and does not have mechanisms to pause the discussion and prevent emotions and passions from prevailing over reason; it does not provide for direct popular participation for the approval of reforms, nor does it have more or less demanding requirements for reform depending on the matter in question.

Unlike what has happened in other latitudes, the Mexican political elites of the past, before losing power in 2018, did not worry about maintaining some type of constitutional influence through the reform procedure. They did not have a long-term vision and, therefore, did not worry about modifying the reform procedure of Article 135 of the Constitution to make it more rigid.

In other words, the keystone of the Mexican Constitution, the constitutional reform procedure provided for in Article 135, allowed us -as Alterio says- to live under a flexible Constitution for many years, and while the political elites of the past had the necessary majorities to use it, they took advantage of that flexibility and did not worry about the future. Thus, through Pacto por México, they carried out reforms as important as the energy, telecommunications, or education reforms, without thinking about the possible reversal of their decisions by a new political elite after 2018.

The significance of reforming Article 135 of the Constitution has been noted on other occasions. In an article recently published in the Legal Journal of the Ibero-American University, I advocated for the reform of Article 135 of the Constitution, regarding the mandatory pre-trial detention provided for in Article 19 of the Constitution and the proposal made in 2022 in the Supreme Court to declare the unconventionality and consequent inapplicability of the cited article. In that work, I argued that the response to the constitutionalization and breadth of the catalog of crimes for mandatory pre-trial detention was not the judicial control of conventionality, no matter how laudable it seemed in our context, as it was a problem of constitutional architecture. Therefore, I suggested a reform to Article 135 of the Constitution to include cooling-off clauses, such as the discussion in two sessions of constitutional reforms, and direct popular participation through a referendum.

Otherwise, if the constitutional reform procedure is not modified, we will continue with unrestrained and short-term vision reforms, which can jeopardize the rule of law, democracy, and human rights. The judicial reform is the best proof of this.

Well, with the judicial reform, we are transitioning in Mexico towards a different type of constitutionalism, in several different respects.

Firstly, Mexican constitutionalism is moving towards a non-liberal constitutionalism because the reform weakens the limits on power, the main characteristic of liberalism. It does this by weakening the federal judiciary, which was the power that enforced constitutional limits during the six-year term. It is true that in some cases the federal judiciary made debatable decisions, such as suspending the distribution of educational books in the States of Coahuila and Chihuahua or giving general effects to the suspension of laws, which is not provided for by the Amparo Law and even expressly prohibited by the regulatory law of actions of unconstitutionality and constitutional controversies.

However, the political reaction to these decisions generated serious dangers, since key features of the judicial reform, such as the pre-selection of candidates by the Executive Power, the Chambers of the Union Congress, and the Supreme Court through Evaluation Committees, the need for the re-election of judges and magistrates after nine years of service, and the competencies of the Disciplinary Tribunal, make it foreseeable that in the future judges will act with great caution when it comes to controlling the government.

Secondly, the reform represents a nationalist constitutionalism because it fears and criticizes the openness found in Article 1 of the Constitution to international human rights sources. Although Article 1 of the Constitution has not yet been reformed, there have been very strong criticisms of the use of international human rights law and the Inter-American System. Particularly, when international law was used to try to limit mandatory pre-trial detention by declaring the unconstitutionality of the second paragraph of Article 19 of the Constitution. Therefore, it is not far-fetched to expect that the judges that will be elected will tend to use international human rights law less.

Thirdly, the reform represents a majoritarian constitutionalism, that is, it understands that the legitimacy of political powers and now the judiciary lies in the election of the majority. Until today, the federal judiciary tried to legitimize itself through the legal and moral solidity of its rulings, but after this reform, it will legitimize itself through the vote. It is important to highlight that the president was able to sustain his narrative about the need for majority legitimacy due to the lack of sociological legitimacy of the judiciary, which, guided by a traditional vision of the judiciary, relegated the construction of its social legitimacy to the background.

Now, majoritarian legitimacy does not equate to popular legitimacy, as in a democratic society the people are made up of a plurality of different visions and the majority does not equate to the people as a whole.

Finally, the reform represents a hyper-presidentialist constitutionalism. The judicial reform is an extraordinary example of Mexican hyper-presidentialism, as there was no force capable of stopping or pausing the president’s initiative. Politically, we saw how absolutely everything was done to ensure it was approved in terms very similar to how it was presented, with modifications that in my opinion did not change its essence, as the heart of the initiative was the total renewal of the Federal Judiciary, of all judges, magistrates, and ministers.

Therefore, the reforms to the initiative on the staggered renewal of the holders, the incorporation of evaluation committees, etc., are only minor modifications that did not change the essence of the initiative. So much so that the president suggested in one of his morning conferences that a lottery should be used for the selection of candidates, and it was immediately incorporated into the ultimate approved selection mechanism.

Even the legislative procedure was carried out with the necessary speed to ensure it was approved before the end of the incumbent’s term, as there were legislative activities outside the sessions to complete the procedure in September.

Thus, the judicial reform concludes the transition to a non-liberal, nationalist, majoritarian, and hyper-presidentialist constitutionalism. Additionally, the reform raises several questions that are difficult to answer at this time, including whether this type of constitutionalism can maintain the democratic system, as constitutions are the structures that support it. There is no doubt that with the judicial reform, Mexican constitutionalism has transitioned to a different type, but its effects—although foreseeable—remain to be seen.

Suggested citation: Roberto Niembro Ortega, Symposium on the Judicial Overhaul in Mexico Part 2: The Transition to Another Type of Constitutionalism in Mexico, Int’l J. Const. L. Blog, Oct. 1, 2024, at: http://www.iconnectblog.com/symposium-on-the-judicial-overhaul-in-mexico-part-2-the-transition-to-another-type-of-constitutionalism-in-mexico/