Judicial reform in Mexico, as currently proposed, removes impartiality, places judges under the auspices of a disciplinary council, which itself is open to corruption, and – most importantly – doesn’t even touch the elements of Mexico’s criminal justice system that need the most support.
It’s not easy to buy a judge. I’ve never tried, but over the years of reporting on organized crime in Latin America I’ve interviewed a handful of people who have. Only one of my sources succeeded, and that judge didn’t live long enough to enjoy the spoils of his decision because a rival criminal organization got to him. Apparently the deal didn’t come with any assurances for personal protection. And the corrupted justice of the law didn’t think he’d need it anyway.
Judicial corruption in Latin America is as prevalent as it is anywhere else in the developing world, yet there is still a special kind of blindaje, or resistance, that judges have to corruptive influences. They are judges afterall – men and women who are hard-wired for a high sense of what is right and what is wrong. The one judge who accepts a bribe is likely someone who has a hard time living with that truth. It’s hard to judge someone else guilty when you’re guilty yourself. This hypocrisy is unique among corrupt judges. But so is nearly everything else about being a judge within a democratic system.
There are three fundamental aspects of being a judge that the multilateral system of justice agrees upon: judges are meant to be apolitical – as much as possible they should be kept apart from the voting public to diminish the perception or the fact of influence over their decisions. Second, judges should be seated on the bench based on merit, on clearly evidenced study and practice of the law. They must be seen as experts in their respective field because judges cannot fake it. Too much is at stake. Finally, judges should be free from the fear of dismissal or condemnation for their judgment. If the first two elements hold true and are in place, then judges must be free to make their decisions based on the facts and the law. They should not be worried that their judgment will result in their removal from the bench – unless of course their judgment is unlawful.
Now to the question at hand: does Mexico need judicial reform? Absolutely.
Take the example of a network of loan sharks operated by a group of judges who with public money preyed upon Ministry of Justice employees needing a loan. Most predatory lenders are not judges. But imagine what happens if you don’t make your payments plus interest on time? The loan shark judge simply has you arrested and jailed until you pay up. Incredibly efficient, and deviant.
There are likely hundreds of examples so far this year of where and how magistrates or judges made one decision or another to clearly favor one group or person over another, wrongly so. Mexico’s judicial system is perceived as one of the most corrupt among Mexicans, according to the Mexican Institute of Statistics and Geography (INEGI in Spanish).
Rather than take a victory lap in the sunset of his sexenio, Mexican President Andrés Manuel López Obrador moved quickly to push through judicial reform after the June 2024 elections because his political party MORENA had the votes in Congress. More importantly, he sees a way to leverage popular discontent with corruption in Mexico’s judicial system into political power for his successor and political movement.
Much has been written about Mexico’s judicial reform, but I want to take a moment to focus on two elements that cause the most concern for many who are outside looking in.
The first is the concept that judges would not be appointed but regularly elected – as would a Senator or Representative, or the President. On the face of it, the idea of voting for a judge, whereby the judge is held accountable to the people on a regular basis, feels like a good idea. No doubt millions of AMLO supporters would agree.
There are at least two major challenges with this concept: the fist is continuity. The second is impartiality.
Judges who are voted in or voted out on a regular basis would possibly diminish the type of hard-wired, corrupt structures that facilitate systemic corruption, as the above usury case would suggest exists or existed. But it would also put downward pressure on foreign direct investment. Against a backdrop of months-, or years-long, judicial processes to adjudicate international and national arbitration between legal entities or between legal entities and public entities, the changing of the judicial guard on a rotating basis diminishes the confidence international observers, including investors, have in protections afforded by the Mexican judicial system.
Now, secondary legislation that will certainly come online, when or if these reforms are passed to alter the Mexican constitution, may account for the above concerns, but right now – likely hours or just a few days away from a Senate vote – this matter is important and the lack of clarity is palpable.
Impartiality is essential for a well functioning and fair judicial system. It is the blindfold that covers Lady Justice’s eyes. Impartiality is also within the symbology of the scales she holds in her raised – oftentimes – left hand. Apart from Bolivia, I’m not aware of any modern judicial system in the world that votes its federal judges to “office.”
The second concept that AMLO and his team has promoted is one of a disciplinary council, which in theory would oversee Mexico’s entire judicial system. Ten candidates each from the Executive, Legislative, and Judicial branches would be brought forward for a vote. The council would then seat the five most popular candidates, who in turn would oversee any and all matters pertaining to corruption, unlawfulness, and other related abuses among Mexico’s judicial system.
Mexico’s judicial system has a little over 50,000 employees. So it’s no surprise that many have looked upon these numbers – five individuals to effectively police over 50,000 – and have called foul. It’s simply not possible to effectively police so many with so few. Nor is there any apparent mechanism for those accused to defend themselves. Yes, secondary legislation should address that, proponents say, but still. The premise is flawed.
But these “technicalities” are not as concerning as the simple fact that judges under this level of oversight would no longer be able to pass judgment in their own courts of law without concern. The oversight opens up too many possibilities for influence peddling and other corruptive practices at the highest levels. This concentration of power in Mexico’s judicial system begs a long list of questions that all orbit around the single idea that with enough money and might, one could effectively “purchase” a member of this council, thereby exercising a measure of control over the entirety of the Mexican judicial system.
To the matter of impunity: a small but mighty Mexican investigation, analysis, and public sector recommendations shop, México Evalúa, produced a study in 2022 that counted 2,246,885 criminal investigation files that had been opened by state prosecutors that year. Yet only 4.3% of these files – 96,616 – had been connected with a court case. What happened to all of these investigations? And another question: what’s going on with Mexico’s state-level prosecutors and the investigators who support their work?
Why doesn’t AMLO’s judicial reform package include reforms or additional support by way of finances or training for Mexico’s state-level prosecutors, on investigators? In other words, there is a whole lot that can be improved and reformed within Mexico’s judicial system that has nothing to do with judges. The majority of the challenges associated with justice in Mexico has very little to do with judges. It has so much more to do with investigation processes and procedures, with the professionalism of Mexico’s federal and state investigators – many of whom I know well and respect but got their high-level training elsewhere – and with the men and women who work with them to bring a case to court where, finally, a judge may review the facts and impartially pass judgment.
Finally, what’s the rush AMLO? Morena’s near supermajority status in the Mexican Senate will not change any time soon. Why not take a little longer to have a robust, national debate to discuss the reform – perhaps alter the proposal as the firm but respectful current president of Mexico’s Supreme Court has offered – and move forward with a more sober view on what needs to be done and how? The current timetable feels whipsaw fast, and will no doubt saddle incoming president Claudia Sheibaum with additional administrative distractions on what is already a full plate.
If these reforms do go through without broader debate, then I suspect we will soon see — perhaps before the end of Sheinbaum’s term of office — how exactly someone managed to buy not just a judge in Mexico but potentially a significant portion of the entire system.