Relevant Aspects of Mexico’s Judicial Reform
By: Juan Luis Blanco Montoya and Fernando Sánchez Tarasco of Müggenburg, Gorches y Peñalosa
At the beginning of 2020, the executive branch submitted to the Mexican Congress the “Reform Project with and for the Federal Judicial Branch” (“reform project”)1, which was recently discussed and approved. The main guidelines were the following:
II. Constitutional Reform
In the first place, the Constitutional Reform was published on the Federal Official Gazette on March 11, 2021, which amended articles 94, 97, 99, 100, 105, and 107 of the Constitution, to stablish the following:
III. The Reform and expedition of Secondary Laws
As mentioned on July 07, 2021, the President of Mexico issued in the Federal Official Gazette the following secondary laws approved by the Congress on April 23, 2021: (i) Federal Law for State Workers (“FLSW”), (ii) Federal Law for Public Defense “FLPD”, (iii) Amparo Law, (iv) Regulatory Law of Sections I and II of Article 105 of the Political Constitution of the United Mexican States (“RL105”)3 , and (v) the issuance of the new Organic Law of the Federal Judicial Branch (“OLFJB”), and (vi) of the previous mentioned “JCL”.
(i)/(ii) Among the most relevant aspects of such secondary laws, the “FLSW” will have the purpose of regulating the services of public defenders in matters of Federal Jurisdiction, in order to guarantee the right to a defense in criminal and labor matters, as well as in amparo claims in family matters and/or other matters determined by the Federal Judicial Council. Regulations in such regard, will also be comprehended in the “FLPD” whose new objective is to have better prepared Public Defenders in order to fulfill with the protection of human rights.
(iii) Moreover, regarding the amendments to the Amparo Law, the existing precedent/jurisprudence system was modified, in order for the considerations of the rulings issued by the “MSCJ” by a qualified majority4, to form mandatory jurisprudence.
Likewise, it should be noted that all Court precedents must clearly state the relevant facts of the case, the legal criteria and the arguments that justified the decision.
An important modification has been proclaimed regarding the general declaration of unconstitutionality by the “MSCJ”, in which the notification to the competent authority will now proceed from the first case resolved by the Court formerly by 5 resolutions.
Finally, the Collegiate Courts of Appeals are created to replace the Unitary Circuit Courts that will be integrated by three magistrates who will maintain its current attributions among others, hearing and resolving the amparo claims in the first instance against acts of another court of the same nature.
Furthermore, the attributions of the “MSCJ” were modified in order to focus on matters of exceptional interest in constitutional or human rights matters, subjecting the proceeding of the amparo appeal only to cases that, in its judgment, have an exceptional interest in constitutional or human rights matters for the interest of Mexican Society.
(iv) Now, regarding the Regulatory Law of Article 105, it is established that Constitutional Controversies will only be applicable when direct violations to the Constitution or to human rights recognized in international treaties are the subject matter of the claim.
It is also including that now “omissions” are challengeable through a Constitutional Controversy, which will promote the fulfillment by the Authorities to their Statutory obligations.
(v)/(vi) In addition to the above, the issuance of a new “OLFJB” was approved, through which it is established among others: the subtraction of inherent aspects to the Judicial Career into a different specific law that is, the “JCL”; the Federal Judicial Council is enabled to, in exceptional cases through General Agreements- designate one or more Courts to resolve cases involving serious human rights violations or that have a social impact of special relevance; nepotism is established as an express cause of administrative responsibility; and the issuance of precautionary measures when pertinent to allow investigations against Magistrates and Judges.
The “JCL” is also issued and will oversee the matters inherent to the judicial career, and through which it is proposed to establish the basis for the development of the judicial career of the members of the Federal Judicial Branch by regulating specific issues such as admission, training, ratification, assignment, and removal.
The new law proposes the creation of two new categories of judicial careers: (a) Judicial Officer –to replace the Administrative Officer and which is proposed to be the first category to enter the career, and (b) The Court or Tribunal Secretary whose specific function would be to prepare draft resolutions that will be submitted to the head of the court for its consideration.
In this regard, the proposed law establishes different requirements for each category of the judicial career among others, to have a law degree, to approve the examination, and for certain categories, a minimum age and certain years of experience, by adhering to the principles of excellence and standards of suitability.
On the other hand, the content and extent of the different stages of the judicial career are regulated, from the admission, promotion, and permanence to the separation of public officials. In this sense, for admission and promotion it will be necessary to approve the examinations which will be public applied by the Federal School of Judicial Training and to which, as a general rule, only those in the next lower category will have access.
Finally, the Law establishes that the ratification of Court Magistrates and Court Judges is subject to the condition that they have not been sanctioned for misconduct, have a satisfactory evaluation, have been six years in office and meet the other requirements established in general agreements. The decisions rendered by the Federal Judicial Council regarding the assignment, ratification, removal and disqualification of Magistrates and Judges, as well as the results of the competitive examinations, may be challenged before the Plenary of the “MSCJ”.
It is important to mention that one of the most controversial aspects of this act, is contained in the THIRTEENTH transitory article by which of means the Congress pretends among others that the President of the “MSCJ” and the Federal Judicial Council in office, is to remain in office up until November 30, 2024.
In such regard, it is important to remember that the President of the Federal Judicial Council is also the President of the “MSCJ”, and that according to the fifth paragraph of Article 94 of the Mexican Constitution, the President of the “MSCJ” could not be reelected to serve as President for the consecutive period of four years. Consequently, with the issuance of the secondary laws, it is considered that a Constitutional provision is being unobserved / violated. Resolution in this regard is still pending.
First, it is important to mention that from our point of the relevant Reform does include positive aspect, such as:
Finally, as a result of the foregoing and derived from the objective analysis of the reform project, we consider important to highlight the following issues:
Finally, in clear contravention of the most fundamental constitutional principles among others, constitutional supremacy and the division of powers, the intention is to extend the term during which the current President of the “MSCJ” will serve by Constitutional mandate as the head of the Federal Judicial Council.
As a result, it is of utmost importance to be aware of the possible claims that could be filed against such reform particularly, and against the extension of the term of the President of the "MSCJ" and of the Federal Judicial Council. Which again will prove the importance of having an autonomous and impartial Federal Judicial Branch to revise such procedures.