On September 15, 2024, the package of amendments to various articles of the Constitution that was recently approved by the Mexican federal Congress and the majority of the state legislatures to reform the Judicial Branch (the "Reform"), was published in Federal Register.
The Reform had its origin in a bill of amendments submitted by President López Obrador in February of this year, and although all the fundamental principles of that bill were preserved, the final result includes several modifications included as a result of its discussion in the House of Representatives.
Below you will find a summary of the changes envisaged in the Reform that we consider most relevant, which we have compiled and summarized in their most important aspects under seven headings.
Structure of the Federal Judicial Branch
Prior to the Reform, the Federal Judicial Branch ("FJB") was composed of the following elements:
- Supreme Court of Justice of the Nation ("SCJN").
- Electoral Court of the FJB (the "Electoral Court").
- Regional Plenaries (bodies empowered to resolve contradictory criteria sustained by the Collegiate Circuit Courts of the same Region).
- Circuit Courts.
- District Judges.
- Federal Judiciary Council (body in charge of the administration, surveillance and discipline of the FJB, except for the SCJN).
As a result of the Reform, the Federal Judiciary Council ceases to exist and, in its place, a Judicial Administration Body ("JAB") and a Judicial Disciplinary Court ("JDC") are created, with jurisdiction over the entire FJB (including the SCJN).
Organization of SCJN, JAB and JDC
Previously, the SCJN operated in plenary or through 2 chambers of special jurisdiction (formed by the same justices). The Reform contemplates that the SCJN shall operate only in plenary, that the number of justices that comprise the SCJN shall be reduced from 11 to 9, and that the presidency of the SCJN shall rotate among the justices every 2 years, based on the votes that each justice obtained in his or her election, with the presidency corresponding to the one who obtained the highest number of votes.
The JAB and the JDC shall each be composed of 5 members, with the JAB being in charge of administrative and judicial career matters and the JDC being in charge of disciplinary matters.
The JDC will have the authority to investigate, prosecute, sentence and sanction (including dismissal when appropriate) the members of the FJB, based on facts that may be reported by any person.
Election of Justices, Magistrates, Judges and Members of the JAB
Prior to the Reform, (i) the appointment of judges, circuit magistrates and members of the Regional Plenaries (as well as other members of the FJB of lower rank) was made in accordance with the Judicial Career Law, which details, among other matters, the requirements for each position and the forms of admission and promotion (which in the case of district judges and circuit magistrates was based on competitive examinations); (ii) the justices of the SCJN were appointed in a staggered manner over time, through groups of three candidates proposed by the President of the Republic, with the Senate appointing the corresponding justice from among those proposed by the President (by a qualified majority of 2/3); if the qualified majority was not reached after the proposal of two groups of candidates, the relevant justice was appointed by the President; and (iii) the magistrates of the Electoral Court were proposed by the SCJN, and elected by the Senate (by a qualified majority of 2/3).
Pursuant to the Reform, the justices of the SCJN, the magistrates of the Electoral Court, the circuit magistrates, the district judges and the magistrates of the JDC will be elected by direct vote of the citizens in national electoral processes (whenever their jurisdiction is national) or in the judicial circuits or regions (whenever their jurisdiction is by circuit or regional). The members of the JAB will be appointed by the three branches of the Union (1 by the President, 1 by the Senate and 3 by the SCJN), generally by qualified votes.
The electoral processes to elect judges and members of the JAB shall be carried out in accordance with the following stages:
Call: A call shall be issued by the Senate, except for the election of circuit magistrates and district judges, in which case the call shall be issued by the JAB.
Candidates: 9 candidates will be nominated for each position of SCJN justice, electoral magistrate and magistrate of the JDC (3 by the President, 3 by the SCJN, 2 by the Senate and 1 by the House of Representatives). For each position of circuit magistrate and district judge, 6 candidates will be nominated (2 by the President, 2 by the SCJN, 1 by the Senate and 1 by the House of Representatives).
For the nomination of their candidates, each branch of the Union: (i) will carry out open procedures for the participation of all interested parties; and (ii) will form an Evaluation Committee, which will evaluate compliance with the applicable requirements and will form a list of the best evaluated persons, who have the necessary technical knowledge for the performance of each position and have distinguished themselves for their honesty, good public reputation, competence and academic and professional background.
Subsequently, the lists prepared by the Evaluation Committees will be reduced through public sortition to adjust them to the number of nominations corresponding to each position, while maintaining gender parity.
Moreover, the persons holding any of the positions to be elected on the date on which the respective call is closed will be candidates too, except if they decline their candidateship or if they are nominated for a different position or judicial circuit.
The Senate will receive the nominations from each branch of the Union and will forward them to the National Electoral Institute.
Electoral Process: The National Electoral Institute will be in charge of the electoral process, who will publish the results and will deliver the majority certificates to the candidates who obtain the highest number of votes, assigning the positions alternately between women and men. Candidates may not obtain public or private financing for their campaigns and may not contract media services to promote themselves. Political parties may not intervene in the electoral processes.
Challenges and Taking of Oath: The results of the election will be sent to the Electoral Court or to the plenary of the SCJN (in the case of electoral magistrates), who shall resolve any challenges before the date on which the first ordinary period of sessions of the Senate of the year of the corresponding election begins; on that date the elected candidates will take oath before the Senate.
Regime Applicable to Members of the Judicial Branch
The Reform establishes specific requirements for each position, including requirements of nationality (Mexican), residence in the country and reputation, as well as requirements related to academic degree and performance and professional experience. Minimum age requirements are eliminated.
On the other hand, the Reform contemplates shorter terms for judges, magistrates and justices and rules regarding reelection: the term of office for SCJN justices is reduced from 15 to 12 years and they may not be reelected; magistrates and district judges will serve for 9 years and may be reelected.
The Reform also sets forth rules concerning incompatibility with other positions, the requirement that salaries must not be higher than that of the President of the Republic, retirement benefits, and the subjection of justices, judges and magistrates to impeachment and declaration of criminal actions, as well as grounds for removal.
In tax matters, the Reform provides that the secondary laws will establish the amounts and cases in which judges shall issue their rulings within a maximum of 6 months (with the possibility of being sanctioned if they do not issue their rulings within such term without justification). It also establishes the possibility of sanctioning judges when they delay without justification the issuance of rulings in criminal cases beyond the allowed time periods (4 months in the case of crimes with a maximum penalty not exceeding 2 years of imprisonment, and ne year if the penalty exceeds that time, unless more time is requested for their defense).
For cases involving organized crime, measures may be adopted to preserve the security and safeguard the identity of the judges, as established by secondary laws.
Unconstitutionality Actions, Constitutional Controversies and Amparos
One of the important points of the Reform is that, contrary to what was allowed, whenever the unconstitutionality of general norms is claimed:
- injunctions staying the challenged acts shall not be granted upon admission of unconstitutionality actions or constitutional controversies;
- in amparo proceedings, no injunctions with general effects (i.e., for the benefit of all citizens and not only for whoever acts in the proceeding) shall be granted; and
- amparo judgments shall not have general effects (i.e., they will benefit only the plaintiff that participated in the proceeding).
However, it should be noted that a declaration of invalidity of general norms by the SCJN will still be allowed, when approved by a qualified majority of 6 votes.
Extraordinary Elections
There will be an Extraordinary Electoral Process 2024-2025 whereby all the justices of the SCJN, the vacant judgeships of the Superior Chamber and all of magistrates of the regional chambers of the Electoral Court, the judges of the JDC and the members of the JAB, as well as half of the circuit magistrates and district judges will be elected. The election day will be in June 2025 and the elected judges will begin their functions in September 2025. The second half of the circuit magistrates and district judges will be elected in the first regular federal election in 2027.
Adequation of Secondary Laws and State Constitutions
Congress will have a term of 90 calendar days to make all
necessary amendments to the federal laws. In the meantime, the
constitutional provisions will be applied directly and,
supplementarily, the laws on electoral matters in everything that
does not contradict the Reform.
The states (including Mexico City) will have a term of 180 days to
adjust their local constitutions to replicate the election through
popular vote of all their judges, including the renewal of all
elected positions no later than 2027.
Final Remarks
This Reform was the subject of much debate, various demonstrations against it and opinions from academics, professional organizations, and the governments of the United States of America and Canada, who expressed concerns about the possible exposure of judges elected through popular vote to external influences that could compromise their impartiality (particularly from the ruling party, who also has majority in Congress). However, we believe that the materialization of these risks will depend to a great extent on the result of the challenges against the Reform that are expected to come, the way the Reform is implemented, the views and actions of the new President that will be taking office on October 1st (Claudia Scheinbaum) and her cabinet, the actions of Congress and the President in the context of the electoral processes, whether other constitutional amendments take place and the pressure that foreign stakeholders may exert (particularly the United States and Canada, as Mexico's most important trade partners).
At this point, it would be premature to anticipate the actual effects of this Reform over the way judges will be ruling from now on; only time will tell us how the functions and criteria of the judges will evolve under the new regime. In the short-term, we anticipate a slowdown in judicial processes, an increase in the use of alternative dispute resolution mechanisms and more intense discussions in the context of the review of the US-Canada-Mexico free trade agreement in 2026 (this review is intended to confirm whether the parties wish to extend the agreement beyond 2036).
The decree of amendments of the Judicial Reform is available at the following link:
DOF - Diario Oficial de la Federación
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
