Rule of Law and the Importance of Judicial Independence

One of the cornerstones of liberal democracies resides in a strong legal system, where any investor has the confidence and certainty that legal disputes – against individuals or authorities – will be resolved by independent judges according to the law. Whenever this principle is ignored or diminished, the possibility of tyranny and lawlessness arises, with the inherent lack of confidence and legal uncertainty. It is imperative to defend the judicial independence in Mexico and avoid any attempt from the executive or legislative branches to achieve the opposite. 

The Mexican Constitution provides that the supreme power or authority of the federation resides and is divided into the executive, legislative and judiciary branches. According to Article 49 of the Constitution, two or more of these powers cannot be united in one single person or corporation, nor shall the legislative branch be vested in one single person. The Constitution regulates, distributes, and limits the functions of each branch. It also establishes the mechanisms and rules through which the members of each branch are elected or appointed, as applicable. 

According to the Constitution, the federal judicial power in Mexico is vested in a Supreme Court of Justice, an electoral court, regional plenary courts, circuit courts, appellate courts, and district courts. The Federal Judicial Council shall deal with matters of administration, supervision, and discipline for the Federal Judicial Branch, except for the Supreme Court of Justice. The Supreme Court of Justice shall consist of 11 Justices. For appointment of a justice of the Supreme Court, the president shall submit a list of three candidates to the Senate. The Senate shall choose one of the candidates by the vote of two-thirds of the present members of the Senate. If the Senate rejects all three candidates on the list, the president shall submit a new list of three candidates. If the Senate rejects this second list completely, the president shall appoint as justice one person from the list. The appointment of each justice is for a 15-year term. Finally, the Constitution provides that the magistrates and judges of the circuit and district courts will be appointed by the Federal Judicial Council, based on objective criteria, and observing the requirements and procedures established by law. 

In Mexico, the federal courts shall resolve all disputes concerning: (i) Laws or acts issued by the authority, or omissions committed by the authority, which infringe the fundamental rights recognized and protected by the Constitution and the international treaties signed by Mexico; (ii) laws or acts issued by the federal government and which break or restrict the sovereignty of the Mexican states or the autonomy of Mexico City, and (iii) laws and acts issued by the authorities of the federal entities, which invade the federal authority’s jurisdiction.

All these provisions are relevant, because this last year the Supreme Court of Justice and the federal judges have been under constant attack from the president. Every major decision made by the judicial branch has been disqualified and questioned by the president, not for its legal merits or the legal considerations that support each opinion, but rather because of political reasons. The president considers that the justices and federal judges should always rule in favor of his policies and decisions, despite what the law provides and what the judicial precedents established. 

According to a recent survey from the Bank of Mexico, 50% of the analysts interviewed mentioned that among the factors that hinder the economic growth of the country, the main ones are related to governance, such as public insecurity, impunity, legal uncertainty, and failures in the rule of law. Italian philosopher Norberto Bobbio maintained that law and power are the two sides of the same coin; law requires the strength of power, while power requires the legitimacy that derives from the law. What characterizes a constitutional democracy is the fact that the side of the coin representing the law always must be on top of the side that shows the power. Therefore, all the authorities are limited by what the law provides and establishes.    

Article 1 of the Mexican Constitution states that legal provisions related to human rights must be interpreted according to the most favorable and broad protection of the individuals. In addition, it provides that all authorities have the obligation to promote, respect, protect and guarantee human rights according to the principles of universality, interdependence, indivisibility and progressivity. 

In that sense, the different judicial proceedings established by the Constitution are necessary and indispensable to control political power, by constraining it to legal limits. Therefore, the judges in charge of settling disputes must always be independent and separate from political power. Otherwise, there will be room and opportunity for authoritarianism, where the individuals have no legal means to oppose and reverse acts, decisions or omissions that violate the Constitution. If the judges are appointed directly by the executive branch and dependent on its favor, there could be no restraint to political power. The same situation arises if the judges are elected by direct vote in open elections, proposed and supported by political parties. Whichever political party has the majority at a certain moment in time, will not necessarily be favored in subsequent elections. Therefore, the judges entrusted with defending and protecting the Constitution should not depend on political swings, but rather, adhere to their independence, criteria, experience, knowledge and, foremost, dignity to rule according to the Constitution, not by the will of the country’s strongperson.