Judicial Reforms in Mexico — The Road to Disaster?

Mexican citizens are all set to elect their Supreme Court Judges. The outgoing Government under President Andres Manuel Lopez Obrador has pushed through constitutional amendments¹, which envisage elections to all levels of the judiciary. Whilst election of Judges is not unknown (several States in the USA follow this practice), this is perhaps the first time anywhere in the world that Judges of the highest constitutional court of a country will be elected to office, thus marking the beginning of a significant experiment which will need to be watched closely by democracies the world over.

The Mexican Government justified the move² on charges of the judiciary being elitist, corrupt, inefficient, beset by nepotism,³ and claimed that it must be reformed to be made more accountable to the people. Whatever be the reason, the Mexican Legislature has backed the proposal and made it into law, despite widespread protests from citizens,⁴ Judges and court employees,⁵ and even international criticism⁶. Normally, tensions between the judiciary and executive are a healthy sign, showing that the system of checks and balances is working. However, what has happened in Mexico seems to be taking it a step too far.

Like most democracies, Mexico follows a constitutional system of separation of powers between the executive, legislature and judiciary.⁷ The Supreme Court is empowered⁸ to rule on constitutionality of laws, resolve disputes between the Federal Government and States or between States, protect the rights of citizens through the writ of amparo (loosely translating from Spanish as “protection”), etc., thereby making it somewhat similar to Supreme Courts of many other jurisdictions including India. An independent judiciary is a must for this system of checks and balances to work, which is why in India, it has been made part of the basic structure of the Constitution by our Supreme Court. Insulating the Judges of the Supreme Court from any pressures which would affect the performance of their duties without fear or favour is paramount to maintaining the rule of law in a democracy. The reforms in Mexico raise the question whether subjecting the higher judiciary to elections will compromise judicial independence and imperil democracy.

Till now, Judges of Mexico’s Supreme Court were chosen by the Senate, from a list of candidates forwarded by the President.⁹ The strength of the Court was eleven Judges with a fixed term of fifteen years.¹⁰ Amongst other eligibility conditions, the candidate was required to have at least ten years’ experience in law.¹¹ Under the reformed system,¹² the number of Judges of the Supreme Court will be reduced from eleven to nine, and their term reduced to 12 years, with the experience criteria remaining unchanged. For judicial posts other than the Supreme Court, the experience criteria is lowered to five years. The amendments also envisage a faceless hearing system to deal with cases of organised crime, and setting up of a Judicial Disciplinary Committee to deal with complaints against Judges.

Time will tell as to how such a system will actually work in practice, however, some immediate dangers come to mind.

Funding and corruption — Contesting elections is expensive. Electoral funding has been a perennial source of corruption in our country, and likely could be in the context of elections to the judiciary too. Any candidate wanting to become a Judge would require deep pockets to sustain the electoral campaign, and the playing field will always be distorted in favour of those candidates who have more money than others. This means, to raise money, those who are holding the office could be tempted to misuse it for monetary gains to finance their campaign; and those who are not in office but want to be, will look for donors to support them, who in turn will have their own agenda which they will expect their candidate to advance, if elected. Such donors could be politicians, businessmen, or even organised crime gangs. In either scenario, the person holding the office would not be discharging their duties independently, but would be catering to some ulterior motive. This is not to say judicial corruption, whether moral or financial, does not otherwise exist, but subjecting Judges to elections is sure to increase the likelihood. This cannot be countenanced in the case of a Supreme Court, which is the ultimate guardian of constitutional values that sustain a democracy.

Populism — An elected official will not get re-elected if they are not popular with the voting public. So also, an incumbent Judge up for re-election will be mindful of anti-incumbency and will be tempted to discharge their duties in a manner which appeases the vote bank. A candidate standing for election to judicial office would have to project a certain agenda to gather votes. Imagine a situation where there is a Government in power which enjoys majoritarian support, be it on religious or ethnic lines. Such a Government will always frame laws to support its own vote bank or further its own image of how society should be organised, often at the cost of minorities or other vulnerable groups. In a robust system of checks and balances, truly independent Judges would strike down or at least temper such laws which trample on the rights of citizens. However, a Judge holding an elected office would hesitate to do so, when it could mean displeasing the majority which makes up the electorate, which in turn elected the majoritarian government that made the laws in question. The same thought process may also apply in sentencing of offenders for certain crimes, or on matters affecting religious freedoms, or personal choices, etc. This would be particularly true around election season. When Supreme Court Judges are subject to such pressures, the outcome on society at large can be quite significant. In such a scenario can it be truly said the judiciary would be functioning in an independent manner, and is motivated only by its zeal to safeguard the Constitution and rights of citizens?

Political interference — Elections, after all, are the domain of the politician. Political parties are well versed with the ground realities of fighting elections and have an elaborate machinery in place at the ground level to gather votes. It is not hard to conceive of a situation where political parties offer their patronage to judicial candidates who align with their own agenda, and contest elections on the platform of that party. The candidate would signal to the voters that he or she is aligned with a party of their choice, as also get the benefit of the organised machinery of the political party, which could again distort the playing field qua a candidate who may be truly independent and have no such affiliation. Voters too would be attracted towards such candidates who identify with their own ideology. This way, politicians would be able to make inroads into the judiciary even before a Judge assumes office, and ensure that their own people are there to protect their agenda. We have already seen in the United States, where a majority of the Supreme Court Judges who have conservative leanings, were influential in ruling on abortion rights and gun laws for example, in a manner which suited the conservative way of thinking. Throwing open posts of Supreme Court Judges to elections would only hasten the process of politicians gaining a foothold in the judiciary, which would be the death knell of judicial independence.

These are just some of the immediate objections which come to mind, and the actual working of the system is bound to throw up several other challenges. However, if these apprehensions come to pass, and the functioning of the judiciary is compromised, then the faith of the public in the judicial system will definitely be tested. In the words of the majority judgment in the National Judicial Appointments Commission case¹³, 1054. … it is the faith of the people in the impartiality and competence of judiciary which sustains democracy. If appointment of Judges, which is integral to functioning of judiciary is influenced or controlled by the executive, it will certainly affect impartiality of Judges and their functioning. Faith of people in impartiality and effectiveness of judiciary in protecting their constitutional rights will be eroded.

One will have to wait and watch how the social experiment underway in Mexico actually unfolds, but the portents are ominous.