Relevant Aspects of Mexico’s Judicial Reform
By: Juan Luis Blanco Montoya and Fernando Sánchez Tarasco of Müggenburg, Gorches y Peñalosa

 

 

 

 

I. Preamble

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:

  • Assign the role of the Mexican Supreme Court of Justice (“MSCJ”) as a Constitutional Court to focus only in the most relevant and important matters of the national juridical order;
  • Strengthening of the Supreme Court precedent system;
  • Consolidation of the Judicial Career;
  • Limitation on the discretional designations of Court Judges and Magistrates,
    so that they are only granted to the winners of the exams;
  • Creation of policies to guide the decisions made by the Federal Judicial Council;
  • Reinforcement of the efforts to fight against corruption and nepotism;
  • Promoting the training and professionalization of staff;
  • Strengthening of the Federal Institute of Public Defense;
  • The project was composed by modifications to the Political Constitution of the United Mexican States (“Constitution”), and a series of reforms to different secondary laws, as well as the issuance of two new ones, same that were issued on July 7, 2021 a day after the midterm election.

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:

  • The jurisprudence by precedents is being established, this means that all
    final rulings issued by the “MSCJ” would be relevant, and the plaintiffs may require that they shall be observed by all Mexican Courts.
  • As for the Constitutional Controversies2, it is suggested that the “MSCJ” should not analyze legality questions but only direct violations to the Constitution as well as of the human rights recognized in the international treaties signed by Mexico.
  • The “MSCJ” has the faculty to decide whether if it will hear and resolve an amparo appeal or not, this is, to decide if the claim is of an exceptional constitutional or human rights interest.
  • The substitution of Unitary Circuit Courts for Collegiate Courts of Appeals, although maintaining its current constitutional attributions; they would be constituted by three Federal Magistrates.
  • The substitution of Circuits Plenaries for Regional Plenaries, whose territorial jurisdiction will be established by the Federal Judicial Council.
  • It is foreseen that all matters related to the admission, training and tenure of judicial personnel will be subject to the Judicial Career Law of the Federal
  • Judicial Branch (“JCL”) and that the faculties for the staff designation and removal shall be ruled by the provisions of such law.
  • The Federal Judiciary Institute is to supervise the Federal Judicial Training School as an auxiliary organism of the Federal Judiciary Council whose purpose is to implement the training processes, providing ongoing training and updating of the jurisdictional and administrative personnel of the
  • Federal Judicial Branch and its auxiliary organisms. It shall also be the organism in charge of conducting the examinations for accessing to different categories of the judicial.
  • The public defense service at a federal level will be provided by a specialized organism of the Federal Judicial Council named the Federal Institute of Public Defense.
  • Regarding the general declaration of unconstitutionality, it is proposed that the notification to the issuing authority will proceed from the first case in which the unconstitutionality of a general rule is declared through an amparo appeal.


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.

IV. CONCLUSIONS

First, it is important to mention that from our point of the relevant Reform does include positive aspect, such as:

  • A new system of precedents for amparo claims is created to provide  greater strength and homogeneity to the decisions made by the Plenary and Chambers of the “MSCJ” by qualified majority that is, the final rulings approved by a qualified majority, will become mandatory jurisprudence for all Courts, without the need for such criteria to be reiterated-it should be mentioned that a similar system of jurisprudence by precedents was already recognized in the Regulatory Law of Article 105, but only regarding the constitutional controversies and actions of unconstitutionality.

  • The judicial career system is strengthened with the expedition of a specialized law responsible for regulating its organization and operation, as well as the admission, training, ratification, assignment and removal of public officials.

  • The procedure for submitting a declaration of unconstitutionality is being accelerated and pushed forward, therefore it orders that the notification to the defendant authority of the unconstitutionality of a general law should be within a period of 15 days from the first instance in which such unconstitutionality is declared.

  • The Public Defender System is strengthened, this will be provided by a specialized organism Federal Institute of Public Defense, whose public defenders will be trained in the Federal School of Judicial Training.

  • It expressly authorizes the Autonomous Constitutional Organisms of the Federal Entities to be able to submit constitutional controversies, and also the possibility to challenge omissions.

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:

  • It opens the way towards the possibility for the Federal Judicial Council to create Ad-hoc jurisdictional entities to review claims involving serious human rights violations or that have a social impact of special relevance a so-called exception to the rules and regulations of competence.

 

  • It limits the admissibility of constitutional controversies only to those claims regarding direct violations of the Constitution or human rights recognized in international treaties, in an attempt to establish that the High Court will concentrate only on analyzing matters of constitutionality that, in their opinion, are of “importance and transcendence” for Society. Closely related to the above, the procedure for an amparo claim review is restricted to matters that, in the opinion of the “MSCJ”, are of exceptional interest for constitutional or human rights matters, even establishing that the resolutions that reject such claim are unchallengeable. The creation of the Collegiate Courts of Appeals is to replace the Unitary Circuit Courts, which will be integrated by three Federal Magistrates who will maintain its current constitutional attributions; this means, resolving the amparo claim in the first instance against acts of another court of the same nature, generating an imbalance regarding the amparo claims handled by the District Courts.


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.