In a world-first, Mexico to elect its judges

Last week Mexico approved a sweeping judicial reform. It allowed election of judges at all levels – from the lower courts, right up, to the top court of the land. In one fell swoop, outgoing President Andres Manuel Lopez Obrador, helped in no small measure by his protege and President-elect Claudia Sheinbaum, quite literally, upended the country’s judicial system.

Now, it was all done Constitutionally. First, the lower chamber of the legislature voted 359 to 135 to pass the legislation. Next, the upper chamber okayed it by 86 to 41 votes. Then, the States of Mexico signed on to it. The ruling party is in a good position in 25 of 32 States, so ratification by a majority of the 32 legislatures posed no problem.

On 15 September, the eve of Mexico’s independence day, President Obrador signed a decree for the reform’s publication while sitting next to his successor, Claudia Sheinbaum, in a video posted on social media.

The constitutional reform’s publication in the Government’s gazette kicks off the process of preparing for the first judicial elections for federal judges, including justices of the country’s top court, set for next June.
Questions abound

So far, so good. But it raises more questions than answers.

— Will it politicise the judiciary?

— Will it undermine the rule of law?

— Could interest groups such as corporates or mafia influence judges’ election?

— What happens to the separation of powers?

— What about the independence of judiciary?

— Will the judiciary still be able to overrule the government?

— Will judges come under pressure to vote for what is popular?

As things stand now, it’s a done deal. And it’s a big deal. Get this: No other country in the world has done something like this ever in human history. Mexico will soon begin electing its judges – as opposed appointing or selecting them – which is what you and I have grown up knowing.
What do the reforms say?

Well, for starters, all the nearly 7,000 posts of judges in Mexico will be filled through a nationwide election – just like the way prime ministers or presidents are elected.

— The number of judges in the top court will decrease from 11 to 9.

— The term of a judge will be reduced to 12 years.

— The minimum age for becoming a judge is 35.

— The minimum work experience required to become a judge has been halved from 10 to five years.

— A new, five-member disciplinary committee will look into matters of indiscipline or unethical conduct of judges.

There are other changes, too.

Judges stand to lose certain benefits in terms of pay and allowances.

And, judges will now be able to work anonymously on cases pertaining to criminal gangs.
How will this new system work?

The Government, Legislature and Judiciary can nominate candidates, who will then be vetted by a Committee before becoming eligible to stand for election. It is a departure from the existing system, under which Mexico’s President forwards a shortlist of names for the post of a judge of the top court, to the upper chamber of the legislature for approval.
Pros and cons

There are compelling arguments to be made for and against election of judges.

The Mexican Government believes it will reduce if not end corruption altogether; it will address the problem of nepotism; become easier to punish errant judges; and generally make the judiciary answerable to the people, not big business or organised crime syndicates.

However, critics fear that courts will now be stacked with judges who favour a particular party. Anyone with a law degree can stand for election as a judge. It would become easier for politicians and mafiosi to influence judges. Checks and balances on the Government will go.

And last but not the least there is no security of tenure, because many of the judges could be out of a job overnight! As Sandra Herrera Benitez, a spokesperson for judicial workers says, “Where does that leave my 27 years of service?”
Precedents

Is it radical? Yes, absolutely! Is it unprecedented? Yes and no. In Bolivia, only the judges of the top court are elected. In the U.S., some states elect judges. Switzerland elects its judges but only at the local level. And, in Japan, the judges of the top court are reviewed through a vote after 10 years. So, Mexico is not the first country to pursue similar judicial reforms. Israel has tried to rein the judiciary, too.

Prime Minister Benjamin Netanyahu’s Government wants to control appointment of judges, prevent the country’s top court from overturning laws, and, and empower the country’s legislature to veto the courts. Protests broke out in 2023 against the move. But, the Hamas attacks in Israel have put the reforms on the backburner.
Murmurs of discontent

Opinion is divided in Mexico. Mexico’s Chief Justice Norma Lucia Pina Hernandez is opposed to the reforms. She says that “the dismantling of the judiciary is not the way forward”.

Luis Hernandez, a 21-year-old student says that “there is no point in having a judicial career if in the end you have to be popular to deliver justice”.

Mexico’s major trading partners – the United States and Canada – have warned that the overhaul could undermine a trade pact and negatively impact investment.

The reform has spooked markets, too, with Mexico’s currency weakening some 17 per cent.

But President-elect Claudia Sheinbaum says that a truly independent and autonomous power elected by the people is good for the country.

For his part, President Obrador says that it sets an example for the world.
The jury is out

The jury is still out on that. Some say that those who have not done anything wrong need not fear the people. Others say that if judges become politicians, will they start thinking like one? And, elections require money; so who will fund the election of judges? For now, Mexico and the world can only wait and watch how things pan out for this path-breaking initiative. As they say, the proof of the pudding is in the eating.