The country’s outgoing president is determined to bulldoze Mexico’s judicial system. His attack on the rule of law is even worse than people realize.
By Amrit Singh and Gianmarco Coronado Graci
September 2024
Leer en español aquí.
Mexican President Andrés Manuel López Obrador (AMLO), with only two weeks left in office, signed into law a raft of constitutional amendments that will remove nearly seven-thousand state and federal judges and replace them with popularly elected ones. The amendments approved on September 15 — just before his protégé, Claudia Sheinbaum, takes the helm — are a last-ditch effort in his longstanding plan to undermine democracy in Mexico.
This was not AMLO’s first attempt to run roughshod over Mexico’s checks and balances, or even his second. In 2022, President López Obrador proposed “Plan A” — a constitutional amendment to gut Mexico’s National Electoral Institute (INE), the highly regarded independent body responsible for overseeing elections. Democratic checks and balances prevailed: The amendment failed to gather the required two-thirds majority in the Senate. So López Obrador unleashed “Plan B” in 2023 which would drastically reduce INE’s staff and give the executive branch control over its budget and operations. Plan B failed after the Mexican Supreme Court ruled the legislation unconstitutional on procedural grounds. AMLO, though, was not taking “no” for an answer. He announced “Plan C” in early 2024 to overhaul the judiciary and elect all state and federal court judges, including the Supreme Court, by popular vote.
AMLO’s ruling party, the National Regeneration Movement (Morena), rammed Plan C through Congress without deliberation and adopted the constitutional amendments in just eight days. Fifty-five–thousand federal judicial workers went on strike, the peso plummeted, and protests racked the country for weeks (with protesters even breaking into the Senate) in response to the attempted destruction of the judicial system. Again, democratic checks moved to stop AMLO: Three federal courts issued injunctions to prevent Congress and the president from enacting the reforms, but to no avail. In an ominous signal for the rule of law, Congress and López Obrador ignored all three.
Even more troubling than Plan C’s bulldozer through the legislature is its substance. AMLO claims that it will reduce corruption and impunity, but in fact the reforms will only exacerbate those problems. Replacing all sitting state and federal judges with ones elected by popular vote will incentivize judges to decide cases based on popularity and political influences, rather than on the law and facts of each case.
López Obrador justified his proposal by comparing it to the United States, where some states elect their judges. However, in contrast to his plan, which would elect all state and federal judges, U.S. federal judges are not elected, but appointed by the president with the advice and consent of the Senate. Moreover, the U.S. experience of electing state judges demonstrates that judicial elections predispose judges to decide cases in favor of their electoral donors. In Mexico, where organized crime already controls much of the country, the reforms would render the judiciary even more vulnerable to capture by those interests — judicial election campaigns in need of funds might be influenced by offers from organized-crime groups. Although the reforms prohibit public or private financing of campaigns, it will be hard to track undisclosed cash donations. In addition, the proximity of reelection makes judges more likely to impose harsher penalties on people accused of serious crimes, because harsher judgments typically earn greater public approval.
The selection process for judicial candidates will also become politicized. The reforms require candidates to be shortlisted by three committees, one from each branch of government. The final candidates will then be randomly selected from each of the lists. Since Morena controls both the executive and the legislature, the party will likely skew the candidate pool in its favor, yielding a judiciary that is unwilling or unable to curb the abuses of power by the government.
In Bolivia, the only other country that elects federal judges, including to the Supreme Court, the ruling Movimiento al Socialismo (MAS) party has used its supermajority in Congress to bias the judicial candidate pool in its favor. So politicized are the courts that in 2017, the constitutional court upheld Evo Morales’s blatantly unconstitutional campaign for a fourth presidential term, and annulled the results of a referendum on the subject. Judicial elections there have resulted in a high percentage of null and blank votes, reflecting public mistrust of the judiciary and the lack of information about judicial candidates.
Electing judges will produce a more politicized and less qualified judiciary in Mexico that will make it even harder for Mexicans to access justice. This is especially true of the federal judiciary, which before had been selected by public examinations, training, and evaluation by the Federal Judiciary Council, an administrative and oversight body that will be eliminated under the reforms. Mexico does not require lawyers to pass a bar exam in order to practice law. Under the judicial reforms, candidates are only required to have a law degree, good grades, and letters of recommendation from their neighbors. Appellate judgeships will need only three years of legal experience, while district judges need no experience whatsoever.
To make matters worse, the reforms create a judicial disciplinary tribunal whose members would be popularly elected in the same six-year election cycle as the president, and whose decisions would be unappealable. This renders judicial oversight highly susceptible to political influence and effectively incapable of ensuring that judges remain impartial and independent. The tribunal could well become a tool for retaliating against judges who issue rulings unfavorable to the government’s interests. In addition, the reforms tie judges’ salaries to the president’s, thereby allowing the executive branch to control judicial remuneration and undermine the judiciary’s financial autonomy.
The reforms also violate the country’s obligations under international law. Mexico has signed and ratified the American Convention on Human Rights and the International Covenant on Civil and Political Rights. Both treaties bind Mexico to protect the right of every individual to a fair hearing by a “competent, independent and impartial” tribunal. Mexico is also bound by the decisions of the Inter-American Court of Human Rights, which has determined that states must guarantee the independence of all judges, especially those responsible for interpreting the constitution. These guarantees include adequate appointment processes, a fixed term of office, and protection against external pressures so that judges can make decisions impartially, without undue external influences or fear of reprisals — essentially, everything that Plan C strips away.
The reforms further violate international law by introducing “faceless judges” for organized-crime cases. Purportedly to protect judges from threats by keeping their identities unknown, in reality this practice will prevent defendants from being able to assess whether “faceless” judges are competent, independent, and impartial, or whether conflicts of interests warrant their recusal. The Inter-American Court of Human Rights has previously held that this practice violates defendants’ fair-trial and due-process rights.
An independent judiciary capable of curbing the abuse of government power is crucial for the preservation of democracy. Authoritarians across the globe understand this, and routinely try to destroy judiciaries that stand in their way. El Salvador’s Legislative Assembly, controlled by allies of President Nayib Bukele, summarily removed and replaced all judges of the Constitutional Chamber of the Supreme Court in May 2021, alleging that they had acted unconstitutionally in ruling against the government’s handling of the covid-19 pandemic. In Hungary, Prime Minister Viktor Orbán’s government forced hundreds of judges into early retirement by enacting legislation in 2011 that lowered the mandatory retirement age, and then filled the resulting vacancies with loyalists. In Turkey, President Recep Tayyip Erdoğan’s government removed thousands of judges after the failed coup in 2016.
The Mexican Supreme Court has successfully checked AMLO before. In addition to ruling Plan B unconstitutional, it invalidated President López Obrador’s attempt to put the military in charge of the civilian-led National Guard. It held that the government could not simply decree public-works projects to be matters of “national security” exempt from permits and public reporting. And it freed the reputable National Transparency Institute from operational paralysis after Morena legislators refused to appoint new commissioners.
AMLO, though, is dead-set on defanging the judiciary. Its very success at checking him in the past is why he is so determined to eviscerate it at the eleventh hour, along with other independent agencies that have tried to constrain his authoritarian excesses. Indeed, the reforms are not about improving justice at all — they are about revenge on a court that dared to defy the president, and about eliminating the vital checks and balances that protect democracy. By removing these safeguards, López Obrador is eroding the very foundations of the rule of law and endangering the future of justice for all.
Amrit Singh is a professor at Stanford Law School and the executive director of the school’s Rule of Law Impact Lab. Gianmarco Coronado Graci is a Master of Public Policy candidate at the Stanford School of Humanities and Sciences and a Knight-Hennessy Scholar.
Copyright © 2024 National Endowment for Democracy
Image credit: Santiago Reyes/ObturadorMX/Getty Images
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