Mexico’s democracy, after years of resilience and progress, is tumbling toward an authoritarian abyss.
As of September 15th, 2024, the judicial branch—formerly made up of judges appointed by the government—will now be elected by the populace. The public, however, will lack the final say. They will be presented with a pre-selected menu of candidates determined by a new “Evaluation Committee” dominated by supporters of Morena, Mexico’s major left-wing populist political party.
“No other model in the world compares to what has just been enacted in Mexico in terms of size. We’re talking about maybe 7,000 or more judges that will be elected. I don’t know of any other country that has that scale of election,” Stephanie Brewer, the Director for Mexico at the Washington Office on Latin America (WOLA), stated in an interview.
On the surface, the popular election of judges seems inherently democratic; power is given directly to the people. In Mexico, however, this reform has been carefully crafted to create the illusion of democracy while covertly handing even more power to the government.
Marisol Ochoa, a professor at Ibero University and a former employee in Mexico’s National Intelligence Center within the Secretariat of the Interior, understands that it is easy to misunderstand the new decision as a democratic reform. But she clarifies: “Popular vote is not a democratic action. It is populism.”
Mexico’s new reform will weaponize justice with the increased influence of organized crime groups and political parties, and a dangerous emphasis on punishment over proper legal procedures.
With the introduction of this system, judicial candidates will transform from arbiters of justice to politicians. Coupled with the fact that political agents will put forward candidates, this system will destroy judicial impartiality.
“Electing judges will politicize the judiciary, eviscerate judicial independence, and remove any constraint on the abuse of power by other branches of government. The reforms are a disaster for the rule of law in Mexico,” said Amrit Singh, a Stanford Law School professor and the school’s Rule of Law Impact Lab executive director.
This is devastating for Mexico, whose democracy was hard-won.
Between 1920 and 2000, Mexico’s government was dominated by the Institutional Revolutionary Party (PRI). In 1994, President Ernesto Zedillo, the last PRI president of the 20th century, entered the scene. Zedillo introduced reforms to move Mexico toward democracy, paving the way for a multiparty system. In the 2000 election, Vicente Fox of the National Action Party became president, marking the first peaceful transfer of power from the PRI. This shift was a nationwide effort, with broad participation across the country.
Mexico rejoiced under a new and thriving democracy, excited about the future and intent on not returning to the “dark days.”
People, however, seem to have a short memory.
In 2018, Andrés Manuel López Obrador (AMLO) and his left-wing populist Morena Party swept to power. They have dominated Mexico’s government since.
Over his six years in office, AMLO has slowly eroded democratic norms. He seized control of the INE’s (National Electoral Institute) budget, reduced its independence, and filled vacant spots with loyalists. The INE is an autonomous public institution responsible for organizing federal elections.
In the last weeks of his sexenio, or six-year term, AMLO passed a momentous constitutional amendment with a supermajority in Congress that will allow the direct election of judges in local, state, and national courts. The judicial branch will lose its autonomy as it becomes subject to the influence of both the executive and legislative branches, both dominated by a single entity: Morena. Who controls Morena? One man: AMLO.
Dení Fragoso Martinez, the Acting Director at the Mexico Country Office of the National Democratic Institute for International Affairs, explained that Mexico’s Judicial Branch was originally designed to check executive and legislative power. The system was “career-based,” with experienced and qualified magistrates and judges. Additionally, the Federal Judiciary Council was created in 1994 to oversee and discipline the Supreme Court based on performances or cases of corruption.
Despite this, the Mexican public has long held a negative perception of the judicial branch, largely due to issues such as corruption and impunity.
According to Brewer, out of all the crimes committed against the population in Mexico, only about 1% lead to conviction. However, Brewer emphasizes that the idea that the problem is rooted in the judicial branch is a misconception.
“The main factors explaining impunity actually occur before a case would ever get to the judicial branch.” Brewer cites problems such as poorly conducted investigations.
“Now that being said, if you go and interview people, they will tell you that police and prosecutors aren’t doing their job either. They will tell you that there’s corruption and collusion in those types of institutions. It’s not as simple as people shifting the blame, but rather, there’s blame to go around.”
AMLO capitalized on this blame, transforming it into a tool to achieve power. Brewer explained that AMLO “projected disinformation,” which penetrated mainstream Mexican media.
“The government has been pumping out verbal attacks and sometimes simply false statements about judges and their role in the judicial branch.”
In the past, the Supreme Court functioned as an effective check on AMLO, blocking many of his proposed legal reforms. The Supreme Court presented a significant roadblock to tightening his chokehold on power.
Unfortunately, Mexico’s political institutions were not strong enough to counter his authoritarian proclivity.
On September 15th, 2024, the reform was signed into law. In Mexico, judges on local, state, and federal levels will be elected through direct voting. The candidate names for these positions will come from a list drafted by the Evaluation Committee, which will be largely influenced by the Morena party.
“This means that it’s very likely that we will end up having judges and magistrates in the Supreme Court and the Electoral Court that are going to be backed by a political party,” Martinez explained.
In a functioning democracy, the independence of institutions such as the judiciary is crucial, as it upholds a system of checks and balances, allowing one branch to prevent abuses of power by others. However, with the recent judicial reform, the judiciary will become aligned with the Morena party, bending to its will even if it means threatening basic human rights.
In other words, what Morena says goes.
The sheer size of the reform is alarming. Voters will be presented with extensive lists of candidates, raising concerns about their ability to make fully informed decisions. Additionally, low turnout in local elections provokes worries about the fairness of the judiciary election process.
The influence of organized crime in the elections is a major subject of concern. Ochoa states that the direct election of judges in local and regional elections will allow criminal activity and corruption to infiltrate legal institutions.
Professor Singh explained that organized crime will exert influence through financial contributions. The reform encourages judges to prioritize gaining votes and appeasing political interests, including organized crime, over making decisions based solely on “facts and law.”
“The reform will make the problem of corruption in the judiciary much, much worse,” Singh states.
On a procedural level, the reform will be catastrophic.
For starters, judicial candidates can have “zero years of experience,” Martinez stated. Without adequate training and education, trust in legal procedures and sentencing will erode, standards for prosecutors will decline, and the judiciary will lose its legitimacy.
The introduction of “faceless judges” is also part of the reform, which seeks to keep judges anonymous to protect their identity. This practice makes it hard for defendants to determine if judges are impartial, qualified, and independent from outside influences. Professor Singh stressed the negative consequences of judicial anonymity, including violations of fair trials and due process rights. According to Singh, “faceless judges” have already been found unlawful by the Inter-American Court of Human Rights.
The reform will also lead to the election of harsher judges and a lack of due process. Judges will prioritize punishment over proper legal procedures.
“When a crime is subject to mandatory pretrial detention, as long as the prosecutor successfully accuses you and the judge allows the accusation to proceed, you are automatically sent to prison,” Brewer explained, “They don’t have to present anything. They don’t have to present substantial evidence which dramatically lowers the standard of proof or investigation needed. This, of course, artificially and needlessly incarcerates a large number of people, devastating them, their lives, their families, and their family economies.”
Mexico’s reforms were misleadingly portrayed as improving the judicial system’s inefficiencies. This included protecting citizens from abuses of power, ensuring their fundamental right to a fair trial, and making justice more accessible.
Maybe the democratic legal principle of innocent until proven guilty was the goal for many Mexicans.
In reality, the judicial reform doesn’t even guarantee guilty until proven innocent, instead pushing the system toward a chilling presumption of unchallenged guilt.
Low-income and marginalized communities, especially women, will be most impacted, lacking access to private defense attorneys and the resources necessary to build a strong defense. Brewer fears that defendants will face “really strong pressure to accept the plea bargain, even if it means, generating a criminal record and spending a certain amount of time in prison.”
For the average person, instead of the reform improving the judiciary system, it will make justice inaccessible and prone to corruption.
In effect, AMLO’s populist party is politicizing justice, exploiting it to advance its own agenda.
“The reform essentially monopolizes power under populist institutions,” Ochoa stated.
This reform will impact Mexico’s relations with key neighbors. Brewer, WOLA’s director for Mexico, noted that the U.S. and Canada have expressed concerns about the reform’s potential conflict with the USMCA (United States-Mexico-Canada Agreement), particularly its impact on judicial independence and Mexico’s obligations under the agreement. This is especially worrisome for human rights advocates and foreign investors with interests in Mexico, as the reform could threaten the protection of international business operations in Mexico.
Who can stop this?
Not the Supreme Court.
In early November, the Supreme Court reviewed the judicial reform amendment and, after several hours of deliberations, decided not to invalidate it, citing a recent constitutional amendment that prevents the Court from opposing such reforms. The Court found that there are now no existing mechanisms that could challenge the reform.
The power of the highest judicial authority in the nation fell short.
Are there any other political institutions that oppose the reform? Martinez doesn’t think so. “Personally, I don’t see a way that anyone could challenge this further. I don’t see that as a possibility,” she said. Martinez believes that the additional constitutional reforms essentially “close the loop” in terms of bringing the judiciary under the control of the other branches of government, further consolidating their power and limiting judicial independence.
Although Mexico’s situation may seem bleak, Brewer speaks highly of the mobilization efforts against the reform by civil society. According to Brewer, instead of thinking that “all is lost,” we need to increase our support for the growing movements in Mexico.
“We’ve seen strikes, marches, demonstrations. So, of course, there’s hope, because the hope lies in activism, in civil society, and in the human rights movement, and the actors who have always been fighting for democracy,” Martinez said, “These setbacks are heartbreaking when they happen, but this is not the first time that society has had to mobilize, push back in adverse conditions, and seek to strengthen democracy and checks and balances in Mexico.”