Symposium on the Judicial Overhaul in Mexico Part 1: Judicial Overhaul and Democratic Backsliding in Mexico

—Tania Groppi, University of Siena (Italy)*

[Editors’ Note: This is Part 1 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.]

1. Rigid or Flexible Constitution? The Rapid Judicial “Reform” Process

What is happening in Mexico? Just two months after the election of the first woman president in the bicentennial history of the country, Claudia Sheinbaum Pardo, Mexican political and constitutional developments have once again drawn the world’s attention, this time around a much more controversial issue.

In fact, on September 15, 2024, outgoing President Andrés Manuel López Obrador (commonly known as AMLO), accompanied by President-elect Sheinbaum Pardo, who will take office on October 1, signed the decree for the constitutional “reform” of the judiciary: a reform that, from the moment the initiative was presented by the Executive on February 5, 2024, sparked a wave of protests not only from the political opposition, but also from members of the judiciary, from high-ranking officials to the working base, university students, and other sectors of civil society. Moreover, harsh criticism came from international institutions, the Canadian and U.S. governments, multiple non-governmental organizations, and the democratic legal community, both in Mexico and worldwide.

On the one hand, the “reform” follows a Mexican tradition, wherein in a context of hyper-presidentialism, the constitution is regarded as a political document easily subject to modification (to the extent that, since 1917, there have been 258 reforms affecting nearly 800 articles). However, its content makes it a disruptive element. So much so that the word “reform” is somewhat inappropriate, appearing more as a “constitutional replacement,” that is, a constitutional modification that distorts the hallmark institutions of the rule of law. In Israel, for example, amid another judicial “reform,” the expression “judicial overhaul” has been used.

Although the Mexican Constitution appears to be quite rigid based on its amendment procedure (any reform must be approved by a two-thirds qualified majority in both chambers of the federal Congress and ratified by the majority of the legislative bodies of the 32 states that form the federation, according to Article 135 of the Constitution), in practice it is easily amendable when the president’s party also controls the Congress and the state legislatures.

The legislative process was completed within a few days, just after the inauguration of the new legislature on September 1, 2024, following the June 2 elections. In fact, the ruling political coalition holds a supermajority in the Chamber of Deputies (364 out of 500), this is a result of the Mexican electoral system and the interpretation given by the INE and the TEPJF, with decisions that were heavily criticized by scholars, to the problematic issue of “overrepresentation”, that is, the limits on the majority effect of the electoral system set out in Article 54 of the Constitution to protect political minorities. In the Senate, where a qualified majority requires 86 votes from 128 senators, the ruling coalition had obtained “only” 83 seats; therefore, it needed three additional senators to secure the qualified majority. The ruling political coalition easily incorporated two senators from the PRD, who had originally been elected as part of the political opposition and obtained in a rather convoluted manner the vote of one PAN senator. This led to the final vote on the reform on September 11, a vote that had to take place in an alternate venue because the Senate building was occupied by protesters. This vote was followed by the quick ratification of the state congresses, a predictable step given that 24 out of the 32 local legislatures are now controlled by the president’s party.

2. The Content: Mexico as an Extreme Example of “Democratic Backsliding”

With this reform, Mexico fully integrates itself, or rather takes a leading position, among the countries undergoing institutional processes of “democratic backsliding.” As multiple experiences have shown, starting in Europe with Poland and Hungary, backsliding materializes through legal norms adopted by political majorities (which in some cases may be broad enough to even allow for constitutional reforms) that undermine judicial independence and “capture” or weaken constitutional courts and independent authorities. The goal of these processes is the concentration of power in the hands of governments that, once freed from the checks and balances characteristic of constitutional democracy, establish themselves irreversibly in power, effectively eliminating the possibility of genuine democratic alternation.

Well, the newly enacted constitutional norms in Mexico —although described by the outgoing president, who fervently promoted them throughout his term, as measures aimed at “cleaning up” corruption and inefficiency in the judiciary through its “democratization”— contain all the elements to consider them emblematic of the ongoing attacks on constitutional democracy seen in many parts of the world. Furthermore, they currently represent the most extreme point, impacting the rule of law mechanisms in a way that has no parallel in any other experience of democratic backsliding. So far, independent bodies have been subject to attempts at control (court-packing) or limitation (court-curbing) by governments and political majorities. There has never been a total replacement of judges, nor had such a large-scale popular election of judges been envisioned. Comparatively, this technique remains limited to local courts in the United States and certain high jurisdictions in Bolivia, including the Plurinational Constitutional Court under the 2009 Constitution, which has caused no small number of issues.

To summarize a reform that disrupts countless articles of the Constitution, it can be said that it amounts to a complete dismantling of the higher branches of the federal judiciary and the Supreme Court of Justice, Mexico’s highest constitutional court. Similar consequences will affect the judges in the states that form the federation, as local legislatures are called upon to introduce direct elections through specific laws. At the federal level, the removal of 1,600 judges (the justices of the Supreme Court, circuit magistrates, and district judges) is planned, to be replaced by judges elected by direct vote. Although in some cases (such as the Supreme Court or the Superior Chamber of the Electoral Tribunal), judges are currently elected by Congress upon the executive’s proposal for a limited term, most positions are filled through competitive exams and are held for life. The first elections, for a total of 343 positions, will be held in June 2025, while a second round is scheduled for 2027. The only requirement to run in the popular election is to hold a law degree; the lists of candidates will be drawn up by the three branches of the state through a complex mechanism that begins with a public call but essentially returns the selection of candidates to political majorities. Notably excluded from the reform, not coincidentally, it has been said, are those magistracies whose nomination are already in the hands of the executive, such as administrative, agrarian, and military courts.

The Supreme Court will be composed of nine “justices” instead of the current 11, elected for 12 years (currently, the term is 15 years). The fact that the reform is aimed at penalizing the Supreme Court is also evident in other provisions, such as those intended to prevent the provisional suspension of challenged laws and to limit the effects of amparo rulings to the specific case at hand. Not to mention the provisions regarding the economic compensation of future judges and the pensions of those currently serving, who are required to immediately resign or seek reelection to have access to them.

The new provisions also affect the body responsible for administering the judiciary and holding disciplinary power, the Federal Judicial Council, which will be abolished. It will be replaced by a Judicial Discipline Tribunal, composed of five members elected by direct vote, with the power to sanction all members of the judiciary, including the justices. The decisions of this Tribunal will be final and not subject to appeal.

In this way, López Obrador managed to achieve what he had pursued for years: the removal of the upper echelons of the judiciary, particularly the Supreme Court, towards whom he had always shown marked hostility, often expressed during his so-called “mañaneras”, where populist rhetoric strongly resonated: a confrontation between “us”, the people, and “them”, the corrupt elites who prevent us from working. The constitutional reform represents a response to the Supreme Court’s annulment of previous attempts at a “judicial reform” carried out through legislative means (the so-called “PLAN B”). In fact, until the June 2, 2024 elections, not having a sufficient parliamentary majority to approve a constitutional reform, “PLAN C” seemed like a rather remote possibility.

3. Perspectives: The Self-Defense of the Courts and the Defense of Democracy

In the face of a “constitutional reform” that, in the name of omnipotent and unlimited popular will, dismantles the foundations of the rule of law and constitutional democracy, the question of the tools to counter it remains open. Comparative law shows that “unconstitutional constitutional amendments” serve as one of the mechanisms of self-defense for constitutional courts. This self-defense is also a defense of constitutional democracy, as the weakening of courts is often only the first step toward broader power grabs, as demonstrated by the package of reforms presented by AMLO on February 5, aimed at disrupting other autonomous bodies (such as the National Human Rights Commission, the National Institute of Transparency, and other independent authorities) and which foresee the militarization of a “National Guard”.

Undoubtedly, this is a narrow path, not only regarding the avenue to trigger the Supreme Court, but also because the Court has not yet developed favorable jurisprudence toward “unconstitutional constitutional amendments” (SCJN, June 6, 2008, Action of Unconstitutionality 168/2007), although there are multiple doctrinal opinions that argue that the power of constitutional reform in Mexico is not unlimited, even in the absence of explicit limits. Moreover, the difficulties of a Court delegitimized by constant attacks from a political power that enjoys broad popular support should not be underestimated, especially when it would be called upon to declare unconstitutional the very “reform” aimed at dismantling it. A “reform” presented to the public as an essential stage of the “Fourth Transformation”, which is supposed to make Mexico a more just and equal country.

At the same time, a ruling of unconstitutionality could serve as a useful exit strategy for the new president, given growing pressures not only from broad sectors of internal public opinion but especially from investors and international organizations. What better way to escape than with a ruling issued by the “evil” conservative judges who are blocking a democratic and progressive reform? The coming weeks will tell whether there is still room for constitutional democracy in Mexico, or if we will have to face an even more extreme stage of global “democratic backsliding”.

Suggested citation: Tania Groppi, Symposium on the Judicial Overhaul in Mexico Part 1: Judicial Overhaul and Democratic Backsliding in Mexico, Int’l J. Const. L. Blog, Sept. 30, 2024, at: http://www.iconnectblog.com/symposium-on-the-judicial-overhaul-in-mexico-part-1-judicial-overhaul-and-democratic-backsliding-in-mexico/

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* Translation by Fernando Gustavo Ruz Dueñas, Researcher at the Inter-American Academy of Human Rights (Saltillo, Coahuila, Mexico)  and PhD candidate at the University of Siena.