Symposium on the Judicial Overhaul in Mexico Part 5: The Other Judicial Reforms in Mexico – Elected and Faceless Judges, Military Personnel with Investigative Tasks, and Mandatory Pre-Trial Detention

—Sandra Serrano, Researcher at IIJ-UNAM

[Editors’ Note: This is Part 5 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 discussion around judicial reform has focused on the popular election of all judicial authorities, the creation of a disciplinary tribunal with dubious criteria for action, and the effects on judicial independence. However, the problems for justice do not end there. This reform is accompanied by others that, together, present a challenging scenario, especially for the criminal justice system.

Along with the popular election of judges, the adoption of the figure of “faceless judges” (Article 20.A section X of the Constitution) was also approved. In the coming hours, the reform that grants the National Guard, a public security institution of a military nature and whose command will be under a division general of the Army, the power to investigate crimes (reform to Article 21 of the Constitution) will be approved. The reform that expands the catalog of crimes for which mandatory pre-trial detention is imposed (reform to Article 19 of the Constitution) is pending discussion and approval. Given the parliamentary majority of the ruling party, it is foreseeable that these initiatives will be approved and that, along with the judicial reform, they will weaken the system of judicial guarantees for individuals accused of a crime.

In various rulings, some against Mexico and others against different countries in the region, the Inter-American Court of Human Rights (IACHR) has highlighted the seriousness of the figures that will transform criminal justice in Mexico. All of them violate human rights and establish a scenario of insecurity for individuals.

Starting in 2025, we will have in Mexico judges who have been elected by popular vote and who, in cases of organized crime, may have their identity preserved under the supposed objective of ensuring their safety. That is, we will have elected and “faceless” judges. Beyond the contradiction this represents, as citizens will know at first who they are voting for but later will not be able to know who is judging, the figure itself violates due process. The IACHR has held that “trials before ‘faceless’ or anonymous judges violate Article 8.1 of the American Convention [judicial guarantees], as it prevents defendants from knowing the identity of the judges and therefore assessing their suitability and competence, as well as determining if there are grounds for recusal,” making it impossible to adequately exercise the right to defense before an independent and impartial tribunal (Case J. vs. Peru, 2013).

These “faceless judges” complete the set of reforms in the areas of judicial power, the National Guard, and mandatory pre-trial detention, representing a figure typical of authoritarian governments. Used in Fujimori’s Peru, Bolsonaro’s Brazil, and Bukele’s El Salvador. Now, Mexico joins this line.

Moreover, these elected but faceless judges will have to apply mandatory pre-trial detention. Mandatory pre-trial detention means that individuals accused of any of the crimes listed in Article 19 of the Constitution must be automatically deprived of their liberty while their trial is ongoing. In these cases, it is not necessary to prove the risk to victims, the danger of flight, or the proper conduct of the trial; it is enough for the person to be linked to the process for one of the crimes that warrant mandatory pre-trial detention. A list of crimes that already includes more than ten, among them home burglary, misuse of social programs for electoral purposes, and corruption.

Now, there is an effort to further expand the catalog of crimes that entail mandatory pre-trial detention. Since the adoption of the reform to the accusatory criminal justice system in 2008, the door was opened to incorporate this mechanism of deprivation of liberty without conviction, initially for a few crimes considered “serious” and mostly associated with organized crime. Over the years, the catalog of these “serious” crimes has expanded considerably. In the package of initiatives sent by the Federal Executive on February 5, 2024, to the Congress of the Union, the catalog is further expanded. Any person accused of extortion, small-scale drug trafficking, or tax fraud must remain in prison simply for being accused of these crimes.

The IACHR has had the opportunity to rule on this figure in the cases of García Rodríguez and others (2023) and Tzompaxtle Tecpile and others (2022), both against Mexico. In these rulings, the Inter-American Court stated that mandatory pre-trial detention violates the presumption of innocence and personal liberty, as it deprives a person of liberty who has not yet been convicted and where the proportionality of the restriction of the right to personal liberty is not analyzed. It is only the crime for which someone is accused that opens the door to pre-trial detention. As Luis Eliud Tapia rightly points out, mandatory pre-trial detention fosters corruption in prosecutors’ offices, affects the most disadvantaged individuals, and encourages innocent people to accept responsibility for crimes they did not commit, among other consequences.

Finally, all this is framed in a context where public security will be in the hands of the National Guard, defined by the initiative presented by the Federal Executive as a “public security force, professional, of a permanent nature, and integrated by personnel of military origin with police training, dependent on the Ministry of National Defense, to execute the National Public Security Strategy within its competence.” That is, a military institution. This gives rise to various problems, but I will focus on just one, the power sought to be given to the National Guard to investigate crimes (proposed reform to Article 21 of the Constitution).

In the cases of Cabrera García and Montiel Flores and Alvarado Espinoza and others against Mexico, the IACHR has pointed out not only that the participation of the armed forces in public security tasks must be exceptional but has also emphasized that the tasks of the armed forces cannot extend to the powers of justice procurement institutions or judicial or ministerial police. With the probable reform of Article 21 of the Constitution, the door is opened for the military to directly carry out investigative tasks, with the risks this entails for the human rights of the general population and, in particular, for those being investigated.

It would seem that the President of the Republic and the Congress of the Union sought to gather a group of atrocious and clearly human rights-violating figures to incorporate them into the constitutional text. It is a combo that generates enormous risks to the rights to due process and personal liberty for accused individuals, adding to the probable absence of a judiciary willing to control excesses and rights violations. Human rights are not on the table; symbolic criminal law, limits to freedoms, and a broad space for the repression of dissent seem to be the new constitutional guide.

Suggested citation: Sandra Serrano, Symposium on the Judicial Overhaul in Mexico Part 5: The Other Judicial Reforms in Mexico – Elected and Faceless Judges, Military Personnel with Investigative Tasks, and Mandatory Pre-Trial Detention, Int’l J. Const. L. Blog, Oct. 4, 2024, at http://www.iconnectblog.com/symposium-on-the-judicial-overahaul-in-mexico-part-5-the-other-judicial-reforms-in-mexico-elected-and-faceless-judges-military-personnel-with-investigative-tasks-and-mandatory-pre-trial-detention/