Breathe
By Magistrate María Emilia Molina de la Puente
Undoubtedly, the constitutional reform initiative regarding the judicial powers (federal and local) has been at the center of public discussion in recent weeks. And no wonder.
Judicial independence is one of the basic pillars of the rule of law in a constitutional democracy; therefore, the autonomous exercise of the judicial function must be guaranteed by the State both in relation to the Judiciary as a system and to the specific judge.
In order to prevent the judicial system and its members from being subjected to possible undue restrictions in the exercise of their functions by bodies outside the Judicial Branch, the function of judges must be guaranteed through an adequate appointment process, as well as their stability and irremovability in their positions, to protect them from external pressures, as has been repeatedly pointed out by the Inter-American Court of Human Rights and the special rapporteurship of the United Nations.
The Inter-American Court of Human Rights in the case of Ríos Avalos et al. v. Paraguay(judgment of August 19, 2021) stated that judicial independence is one of the "basic pillars of the guarantees of due process", as well as the way to guarantee the jurisdictional function. Aspects that the same regional court has expressed in the judgments of Villaseñor Velarde et al. v. Guatemala of February 5, 2019; and Quintana Coello et al. v. Ecuador of August 23, 2013, where it even established general standards on judicial independence.
The Political Constitution of the United Mexican States enshrines the division of powers and places on the Federal Judiciary the responsibility to safeguard the fundamental rights of all members of Mexican society, to act as the balance between the federal powers and to act as guarantor of the rule of law for the benefit of society as a whole.
It is imperative to work together in the construction of a new model of justice, for the sake of justice, rights and freedoms that we all want in our country; for this purpose, it is necessary to analyze the objectives to be achieved with the judicial reform, as well as to assess and discuss which is the best way to achieve those purposes.
According to the text of the initiative presented, most of the people who are not familiar with the judiciary and do not understand its processes, are of the opinion that they distrust it.
This is the starting point for the first problem identified: those who are giving their opinions are those who do not know, do not know and, therefore, do not understand the real problems or the consequences of one or the other path to follow.
The next question we should ask ourselves is whether the judges should be popular, as any other public official or politician can be. To make an analogy with a soccer match: we will always see the teams' cheers, but never the referees'. Nor can we conceive the choice of players in a similar way to that of those who referee the games; the qualities of each are different and the way of evaluating performance is also different.
The reform proposal appears to have several risks, among others:
- The elimination of all judges at the same time and the entry into office of those without the appropriate profile, without experience and -most likely- without a judicial career, would imply a very long learning curve , to the detriment of the citizens. Not just any legal professional can be a judge.
- The initiative itself recognizes society's lack of knowledge of the characteristics required to be a judge; therefore,how could they choose the best profile without knowing what is necessary?
- Judges must only apply the law and make interpretations of it in accordance with international and national standards; furthermore, we can only judge those cases that reach the jurisdictional bodies; that is, we cannot propose specific public policies insofar as we do not decide the issues that we will hear nor are we in charge of defining the applicable general norms. To this extent, it is not possible to think of campaigns for popular election with the characteristics of this voting system.
- The initiative foresees that those who aspire to be elected to be judges must campaign, but that this cannot be financed by public or private funds, so where would the money for this come from? There is a great risk of compromises with power groups that could influence voters (e.g. political parties, unions, churches, organized crime), which would imply a very high risk of loss of independence, autonomy and impartiality in the work of those who will judge the conflicts of the general population.
- The initiative establishes that, at the federal level, both the campaign and the election shall be for a specific circuit, where it may be exclusively assigned. Re-election could even be attempted only in that place. This implies the possibility of serious conflicts of interest for those who will act as arbitrators in the controversies of that locality.
- The possibility of participating in a reelection process, while in office, suggests that the resolutions during the first period would not be made with the intention of privileging the protection of human rights or the administration of justice, but with a later electoral purpose, i.e., benefiting those who can determine the majority for reelection.
If such reform is approved, it would constitute a serious attack on judicial independence, which will result in direct harm to the citizens, since the right to a prompt and specialized administration of justice will inevitably be affected, thus failing to comply with the responsibility assumed by the Mexican State before the international community.
Judicial independence is fundamental to guarantee impartiality in our decisions, and to ensure that due process is respected in all cases that come before us. Without judicial independence, justice is compromised, citizens lose confidence in the legal system, and society perpetuates itself as a space of violence and discrimination.
We agree that to fight corruption and to judge with a social perspective, as well as to guarantee a prompt and expeditious administration of justice, are laudable objectives in the search for a justice that guarantees the human rights of all people, which our society undoubtedly requires. Mexico deserves that the analysis be real and not political, that we leave behind political posturing and misunderstood egos; that the proposals be serious and move away from simplistic solutions; that all those involved participate, because the people who inhabit this country deserve the guarantees of a democratic system and to live in a state of law that guarantees social peace.
Always certain that greater representation of women at the highest levels of government is one of the most effective measures to fight inequality and open the way to full parity, that the fight against inequality belongs to all of us, and that dialogue is the only way in a democratic state to reach consensus, preserve governability and avoid confrontation and authoritarianism; We are confident that the historic moment in which parity in elected office and the arrival of the First Constitutional President of Mexico will allow the indispensable conditions for the strengthening of our country and the unrestricted respect and guarantee of all fundamental rights for all people.
* María Emilia Molina de la Puente is a Federal Magistrate, with 26 years of judicial career, attached to the Seventh Collegiate Court in Civil Matters of the First Circuit and President of the Mexican Association of Women Judges.
The opinions expressed are the responsibility of the authors and are absolutely independent of the position and editorial line of the company. Opinion 51.
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