No, Mexico’s Judicial Reform Isn’t a Risk to Democracy

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Exceeding the two-thirds required supermajority, Mexico’s Senate has narrowly passed a constitutional reform package championed by President Andrés Manuel López Obrador (AMLO). It promises to overhaul the country’s justice system — today among the world’s most corrupt and inefficient.

The broad package of reforms, introduced as “Plan C,” has attracted most attention for its sweeping changes to Mexico’s judiciary. Most controversial are those to the Supreme Court. Plan C will reduce its bench from eleven members to nine and reduce justices’ terms from fifteen to twelve years. It will also align their salaries with the president’s, which AMLO decreased by 60 percent after assuming office in 2018. Most importantly, the judicial reform dictates that justices — whether serving on the Supreme Court or at regional and local levels — will no longer be chosen by the president, but directly elected by popular vote.

The outcome of this overhaul remains uncertain to some. But critics, especially in Washington, are sure it’s bad news — and haven’t been shy about saying so.

AMLO’s third attempt at constitutional reform, Plan C — after the earlier plans A and B either failed to pass Congress or were blocked by the Supreme Court — is marketed as an attempt to root out corruption within the judiciary by holding judges accountable to the public, as opposed to the politicians and government agencies that appoint them. His detractors identify another, more sinister motive: to push the separation of powers in favor of the ruling Morena party, which enjoys widespread support, and thus make it easier for his colleague, president-elect Claudia Sheinbaum, to pass reforms in the future. “We will win the Presidency of the Republic and Plan C for all of Mexico,” Sheinbaum tweeted in April, two months before achieving a landslide victory in the presidential race. She continued to back Plan C as it passed the lower house and most recently the Senate on Wednesday.

In recent months, AMLO’s judicial reforms have met with widespread elite protest. Between judges going on strike and NGOs publishing apprehensive open letters, the consensus among legal experts both inside and outside Mexico appears to be that the judicial reform is not going to improve the country’s ailing justice system but make it even more dysfunctional.

At first glance, the reform’s overwhelmingly negative press coverage is more than a bit puzzling. The idea of having Supreme Court justices chosen by the people should, at the very least, sound like a rational response to the kind of situation Americans are in today, where Republicans have acquired the unchecked ability shape the law according to their agenda.

However, Mexico’s Supreme Court is not identical to its American counterpart. As mentioned, federal justices don’t serve for life, but are subject to reasonable term limits, even when compared to countries like Canada, where they must retire before seventy-five and can be removed on grounds of incapacity or misconduct.

The notion that AMLO is acting undemocratically by relinquishing presidential powers to the Mexican people sounds oxymoronic, especially coming from the mouths of American officials. Yet the US ambassador to Mexico, Ken Salazar, warned AMLO that the reforms posed a “major risk” to democracy, a comment that led the latter to temporarily suspend official relations with him. Throughout history, US government representatives have often extolled democratic values even while asserting American interests at Mexico’s expense. The US ambassador to Mexico during the Mexican Civil War, Henry Lane Wilson, demonstrated as much when he helped soon-to-be dictator Victoriano Huerta murder President Francisco I. Madero in 1913, prolonging the conflict and severely damaging the country’s nascent democratic institutions in the process.

Such doublespeak continues to this day, with both Joe Biden’s and Justin Trudeau’s administrations denouncing AMLO’s efforts to reassert energy sovereignty and rein in exploitative foreign mining interests — much like the attacks on Lázaro Cárdenas during the 1930s and other such interventions that have entrenched socioeconomic inequality in Mexico and much of resource-rich Latin America. More than any other president since Cárdenas, AMLO has delivered on promises made to the working poor: increasing minimum wages by 85 percent above the inflation rate, implementing labor reforms, introducing direct cash-transfer programs for the young and elderly, and raising per capita labor income to all-time highs.

But if so many of AMLO’s actions have shaped Mexico for the better — to the great frustration of the country’s exploiters — why should the judicial reforms work out differently?

The opposition to the judicial reforms consists not only of diplomatic and business interests but also of human rights NGOs who fear that subjecting judges to the push and pull of electoral politics will further compromise the separation of Mexico’s governmental powers. They allege that it will turn its semi-independent justice system into a pawn of the prevailing political party, which for the moment happens to be Morena.

“Who gets to be on the ballot?” asks Stephanie Brewer, director for Mexico for the Washington Office on Latin America (WOLA), a human rights NGO:

To get on the ballot, you will have to be approved by at least 1 of 3 institutions, 2 of which are controlled by the ruling party (the executive and legislative branches) and the third (judicial branch) has been so continually publicly stigmatized through relentless verbal attacks by the current president that whatever candidates they might send to the ballot will be assumed to be corrupt and unelectable by much of the voting public. So, what comes out of the oven is a judicial branch that will tend to be more aligned with the ruling party and therefore less willing to rule against the government or defend people’s rights against government authorities.

Diane Desierto, a professor of law and global affairs at Notre Dame Law School (NDLS) and founding director of NDLS Global Human Rights Clinic, agrees:

Electing justices to Mexico’s Supreme Court of Justice deliberately turns the judiciary into a political actor that decides on the basis of electoral majorities, rather than the impartial, independent, expert analysis of law. When justices are subject to the electoral process, that independence and impartiality is compromised altogether.

Critiques of the reforms frequently point to Bolivia, where a 2017 bill to elect rather than appoint justices not only failed to improve the country’s score on Transparency International’s yearly Corruption Perceptions Index (never mind that its most recent constitutionally guaranteed elections haven’t even taken place). Then there’s the United States, where the election of state judges has often been criticized as influencing rulings, especially around the time people head to the polls.

According to the previous rules, the president chooses the justices, who are then confirmed by the Senate. In the shorter term, the judicial reform is still likely to serve AMLO’s agenda for the simple reason that, as long as Morena remains popular, people are likely to elect justices whose views align with the ruling party. However, under this new system, future ruling parties, if they have the support of the people, will enjoy the same benefit. If people are worried about Morena’s unchecked power, just imagine what a right-wing party would do in the same position. In a country where people have little to no means of holding their government accountable, concentrating power in the hands of a single person or political movement is generally a recipe for disaster.

That said, while some critiques of the judicial reforms are based on valid concerns, they seldom mention favorable alternatives. Instead of going after justices, some may argue that AMLO should direct his attention to what researchers have long identified as a fundamental problem with Mexico’s justice system: a prosecutorial arm which, whether due to complacency or corruption, has failed to protect citizens from crimes (only 5.2 percent of which end up solved, according to the Wilson Center) and government abuse. Perhaps if state attorney generals were elected officials, they would be more inclined to serve the interests of their constituents than cartel ones.

Although poverty and crime in Latin America can be attributed to many causes, lack of government accountability — of officials serving themselves, their (overseas) allies and trading partners, and especially the cartels — is a serious factor. AMLO has centered his agenda on rooting out government corruption, reclaiming a popular politics of anti-corruption, most often associated with the Right, for the benefit of poor and working-class Mexicans.

Concerns about the judicial reforms echo claims of Mexico’s historical exploiters that its own people can’t be entrusted with political power, whipping up a panic about “populist” rule. As opposition to the reforms continues, foreign observers should insist on ordinary Mexicans’ right to choose their own government without foreign meddling. Americans might even take note on how they might reform their own corrupt Supreme Court.

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No, Mexico’s Judicial Reform Isn’t a Risk to Democracy

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