Judicial Reform: Assessing Its Legality and Transition Prospects

The judicial reform has been approved, establishing that ministers, judges, and magistrates will be elected by popular vote. Its implementation comes amid challenges, marked by a suspension of its publication and numerous protests, raising concerns about its legal status. Nevertheless, experts agree that a transition in the judicial system is underway, prompting calls for secondary reforms to provide clarity and stability during this process.

On Sept. 11, MORENA and its allies secured the necessary votes for a qualified majority to pass the Judicial Reform in the Senate. With 86 votes in favor, 41 against, and no abstentions, the Senate approved the reform, despite protests outside and opposition objections.

On Sept. 15, President López Obrador enacted the judicial reform by publishing it in the Official Gazette of the Federation (DOF). The following day, the constitutional amendment took effect, triggering the extraordinary 2024-2025 electoral process to elect ministers, judges, and magistrates through popular vote.

The decree was issued despite an order from the Thirty-Second Circuit Collegiate Court to halt its publication after a complaint from Fundación Iris en Promoción y Defensa de los Derechos Humanos, citing failure to comply with an earlier suspension by various authorities. Senator Ernestina Godoy, Chair, Senate Constitutional Points Committee and incoming legal advisor to president-elect Claudia Sheinbaum, dismissed the court’s suspension, however. "It is inadmissible; one branch cannot overrule another."

Despite its publication, experts noted that the president, deputies, senators, and state congresses defied a suspension order that should have been enforced. Francisco Burgoa, Constitutional Lawyer, UNAM, emphasized that it is the judges' responsibility to refer the case to the public prosecutor, which would lead to an investigation into this political defiance. However, Burgoa doubts this will happen, as it is unlikely that charges will be brought against the president, despite constitutional provisions allowing for the removal of officials.

“I do not foresee any significant legal consequences. Throughout this administration, numerous rulings have directed the president and legislature to follow legal processes, but these orders have often been ignored without serious repercussions,” Burgoa explained.

While national business leaders and chambers have expressed concerns about the judicial reform, others urge caution against overreaction. Francisco Cervantes Díaz, President, CCE, acknowledged that certain elements of the law need harmonization for effective implementation, particularly the processes for electing judges and defining secondary laws. “These aspects are essential for ensuring public engagement with legislators and the Executive.” He also stressed that Mexico's current trajectory does not indicate a shift toward authoritarianism and that the public should not interpret it as such.

USMCA: Addressing International Concerns

Judicial changes have alarmed the international community. US Ambassador to Mexico, Ken Salazar, stated that the reform could allow organized crime to influence judges for political purposes. He also emphasized that confidence in rule of law is essential for maintaining a stable environment for private investment—something Mexico is currently struggling to provide.

Wilson Center predicts a contentious revision of USMCA, as the Judicial Reform directly conflicts with key provisions of the agreement, as they undermine the requirement for independent judges in labor disputes and threaten the autonomy of regulatory bodies in critical sectors, states the center.

Marcelo Ebrard, incoming Minister of Economy, announced that on Oct. 15, a high-level meeting between Mexico and the United States featuring top executives from major corporations will take place. The event will address concerns related to the judicial reform. "We will deliver a key presentation outlining strategies for attracting investment, with direct discussions on the critical aspects of implementing the judicial reform. (…) We will also highlight that the election of judges has been a long-standing practice in the United States."

What Comes Next?

In 2024, efforts will focus on transforming the judicial system so that 1,600 positions—including those in the Federal Electoral Tribunal, circuit court judges, district judges, Supreme Court justices, and Federal Judiciary Council members—are elected by popular vote. 

Following the 30-day period outlined in the Federal Official Gazette, the Senate will issue a call for proposals, detailing procedures and appointing a technical committee to evaluate candidates. Candidates must hold a law degree, have at least 10 years of professional experience, and not have held federal positions. They may campaign on radio and television, present their proposals, and participate in debates, but cannot use public funds or accept private donations.

From October to February, deadlines will be set for nominating and electing candidates. For Supreme Court appointments, the Executive Branch will propose 10 candidates, the Judicial Branch will suggest another 10, and both the Senate and the Chamber of Deputies will nominate five candidates each. By February 2025, the final lists of candidates for positions like ministers, magistrates, and judges will be completed.

In 2025, elections will be held for Supreme Court justices, magistrates of the new Judicial Discipline Tribunal, and the new Administrative Body. Elections for half of the district and circuit magistrates will also take place, with the remaining half elected in 2027.

Under the reform, the Supreme Court will eliminate its two existing chambers, which currently handle civil, criminal, administrative, and labor cases, and reduce its bench from 11 to nine justices, who will serve 12-year terms instead of 15.

What to Expect from Claudia Sheinbaum: A Smoother Transition Ahead

Sheinbaum has confirmed that her administration will fully comply with the new constitutional changes once she takes office. “There is some opposition, but that is part of the democratic process and not a problem. The Judiciary's renewal will begin in October as required by the constitutional reform, and the Executive Branch will support this process,” she affirmed.

Sheinbaum acknowledged that additional reforms are needed to adapt the justice system in all states. She emphasized that her focus will be on establishing procedural rules for federal judges and detailing how the Judicial Discipline Tribunal will review and potentially sanction their work.

“Procedural rules must be updated to ensure compliance with the Constitution. Moreover, there has been much discussion about the tribunal’s operations. It is crucial to define clear rules for its functioning and ensure it can sanction judges without slipping into authoritarian practices. The tribunal must operate under transparent mechanisms to ensure fair justice," she stated.