Who judges the judges?

 

During a brief stop in Mexico City, we met over dinner a young tax lawyer who took his degree from the Universidad Nacional Autónoma de México (UNAM: the National Autonomous University of Mexico). That word autonomous is significant. The University City covers an area of 730 hectares, a little over 7 kilometres square, and within that area the national government cannot exercise authority, nor can the police or the armed forces enter without the permission of the rector of the university. UNAM’s autonomy has not always been to the liking of Mexico’s presidents, and has not always been scrupulously respected, but de jure the autonomy still stands and de facto it is quite a serious step for a president not to respect it.

 

Since Mexico took its faltering steps in 2000 from the ‘managed democracy,’ or the dictadura blanda (soft dictatorship) as some scholars now term the 70-year rule of the Partido de la Revolución Mexicana (PRI), other ‘organismos autónomos’ (autonomous bodies) have emerged. Examples are the Instituto Nacional Electoral, which organizes and supervises the conduct of elections; the Insituto Nacional de Trasparencia, Acceso a la Información y Protección de Datos Personales (National Institute of Transparency, Access to information and Protection of Personal Data); the Instituto de Derechos Humanos y Democracia (Institute of Human Rights and Democracy). It would be an optimist akin to Candide who believes that since 2000 the newer autonomous bodies have waved magic wands to ensure perfectly democratic elections, absolute respects for the rights of the individual citizen, or who thinks that governments now operate with scrupulous transparency. Nevertheless, these bodies have made serious efforts to monitor and regulate the behaviour of government. These efforts have not been popular with the four presidents who have ruled Mexico since 2000, and they have particularly irritated the about-to-be ex-president Andrés Manuel López Obrador (AMLO), who has sought ways to limit their power, ignore or abolish them.

 

But over dinner we discussed AMLO’s outgoing contribution to the Mexican constitution, approved by the Senate that very day and overnight by a plurality of the states: the election of all judges in Mexico over the next two years. AMLO and the incoming president Claudia Sheinbaum have justified this reform on the basis that there is corruption and nepotism in the judiciary, and that justice should promote the views and priorities of a majority of the people; that is to say as defined by AMLO and his party, MORENA, the so-called Fourth Transition toward a society, after many decades of rule by what AMLO defines corrupt conservative neoliberal opposition. It is worth noting here that charges of nepotism would ideally require a certain self-awareness on the part of a president who has just engineered the election of his protégé as Mexico’s first female president, and who seems to be grooming his son, Andrés (known as Andy) for president in 2030. Moreover, there are examples in MORENA’s own ranks of curiously familiar relationships: the governor of Guerrero, for example, is the daughter of one the state’s senators.

 

In Mexico City, voters will choose from 1,000 candidates for 150 federal judges and justices of the Supreme Court. Voters may choose up to ten candidates for each of the 150 posts. Thus, the most diligent voters will write in by hand 1,500 names (some candidates can be preferred for more than one post). Incumbent justices may stand for election. One third of new candidates will be selected by each of the three branches of government: i.e. the president, the legislature and the judiciary.  Candidates must be a Mexican citizen, in full exercise of rights, 35 years of age for justices and magistrates, and 30 years of age for judges, have a law degree with five years of seniority, five or ten years of professional practice, good reputation, without criminal conviction, with at least one or two years of residence in the country and without having held a series of state offices or positions.  State judges will be elected by processes to be determined by each state.

 

AMLO has shown a fondness for organizing votes to approve certain proposals. At the beginning of his term, he held a vote to approve the sale of the presidential jet purchased by his predecessor Enrique Peña Nieto. He also called a vote to decide whether his predecessors should be investigated for corruption. In both cases, the turnout was minimal and the majority approving AMLO’s proposals massive. It is at least possible, more likely probable, that few Mexicans will participate in the elections of judges and that those who do vote will be closely aligned with the dominant party, MORENA.

 

The reform has been vigorously opposed by the judiciary, including the incumbent president of the Supreme Court, Norma Lucía Piña Hernández, and by the political parties that oppose MORENA. To pass, the initiative required a two thirds majority in the senate, MORENA needed to persuade one senator from an opposition party to vote in favour or to abstain. In the event, a senator from the state of Puebla was placed under federal investigation for corruption shortly before the vote. He absented himself for ‘health’ reasons and his substitute, his father (nepotism again), stayed away from the vote. The manner in which approval was won does not suggest that judicial elections will be free and fair.

 

The rule of law in Mexico has always been shaky. The new electoral mechanisms seem unlikely to strengthen the rational, honest and just application of the law. The opportunities for political influence, nepotism, and influence of the judiciary by criminal organizations will likely be enormous. One small ray of hope is provided by AMLO’s failure to effect another constitutional change: the abolition of the autonomous organisms. He has run out of time to do so, unless his successor obliges.