Executive Summary:
- The Initiative that reforms, adds and repeals various provisions of the Political Constitution of the United Mexican States to make significant changes in the organization and operation of the Federal Judicial Branch, has currently been approved by both Chambers of the Legislative Branch and is under discussion by the state legislatures.
- We consider that in view of the possible political-judicial transition foreseen by the reform scheduled for September 2025 It represents a challenge to the procedures initiated prior to the entry into force of the reform.
In this regard, the reform proposed by the Federal Executive, which has been approved by both Chambers of the Legislative Branch and is under discussion by the state legislatures, modifies various provisions established in the Political Constitution of the United Mexican States.[1] reforming, among others, articles 17, 20, section B, 94, 95, 96, 97, 98, 99, 100, 101, 107, 110, 111, 116, and 122.[2]
That is to say, although the cornerstone of judicial reform is the popular election of Judges, Magistrates, Ministers, and Ministers; in it, points such as: (i) the redesign of the Supreme Court of Justice of the Nation (“SCJN”), (ii) the replacement of the Federal Judicial Council by the Judicial Disciplinary Court and the Judicial Administration Body, (iii) various budgetary measures, such as the elimination of retirement benefits for ministers, (iv) the establishment of maximum time limits for the issuance of sentences, and (v) prohibiting the general effects on the suspension and merits of amparo proceedings, unconstitutionality actions and constitutional disputes. Considerations on which, below, a brief summary of its scope and content will be made:
1. New integration of the Supreme Court of Justice of the Nation
Regarding the SCJN, the reform foresees substantial modifications to its composition, structure and operation. Among the changes, the reduction of the members of the Court from 11 to 9 Ministers stands out; which has as a consequence the modification of the vote necessary to form precedents of obligatory observance, decreasing it to 6 votes. In addition, it is foreseen that the Ministers of the SCJN will remain in office for 11 years, without the possibility of being elected for a new period.
Likewise, the Chambers that make up the Supreme Court of Justice of the Nation are eliminated; which, currently, have the jurisdiction to hear those matters that the Plenary did not retain for resolution in the second point of general agreement 1/2023.[3] The above has the consequence of reducing the workload, allowing the Plenary to focus on the discussion and resolution of matters of greater constitutional relevance. Therefore, by eliminating the Chambers, the Plenary will be the body responsible for hearing all matters that are admitted and processed in our High Court.
2. Modification to the procedure for electing public servants
Pursuant to the reform, the Ministers of the SCJN, the Magistrates of the Superior Chamber and the Regional Chambers of the Electoral Tribunal of the Judicial Branch of the Federation, the Magistrates of the Judicial Disciplinary Tribunal, the Magistrates of the Circuit and District Judges will be elected by popular vote in a free, direct and secret manner.
For the purposes of the above, the Senate of the Republic is responsible for compiling and publishing the call for the integration of the list of candidates within 30 calendar days following the installation of the first ordinary session of the year prior to the election. For such purposes, the Senate of the Republic will receive the nominations and send them to the National Electoral Institute no later than February 12 of each year. These will be made in accordance with the following:
- The Ministers of the SCJN, the Magistrates of the Superior Chamber of the Electoral Tribunal of the Judicial Branch of the Federation: The Executive Branch will propose up to 3 candidates; the Legislative Branch will nominate up to 3 candidates (1 by the Chamber of Deputies and 2 by the Senate, by a qualified vote of 2/3 of its members) and the Judicial Branch of the Federation, through the Plenary of the SCJN, will nominate up to 3 people by a majority of 6 votes.
- Circuit Magistrates, District Judges: The election will be held by judicial circuit, granting each of the Powers of the Union the possibility of nominating up to 2 people for each position.
In this regard, it is foreseen that candidates will have the right to access radio and television equally, in accordance with the distribution of time determined by the National Electoral Institute, expressly prohibiting public or private financing of their campaigns, as well as the hiring of spaces on radio and television or any other means of communication to promote candidates. In addition, it expressly prohibits political parties from taking a position in favor of or against any candidate.
For its part, the following requirements are foreseen to be a candidate for popular election: (i) be a Mexican citizen by birth and in full exercise of his or her civil and political rights; (ii)have a professional degree in law with a general average of at least 8 points or its equivalent and 9 points or its equivalent in the subjects related to the position for which you are applying; (iii) enjoy a good reputation and not have been convicted of a criminal offense punishable by imprisonment; (iv) have at least 5 years of legal practice at the time of application; (v) Having resided in the country for two years prior to the date of publication of the call; (vi) not having been Secretary of State, Attorney General of the Republic, Senator, Federal Deputy or head of the executive branch of any federal entity during the year prior to the call;
In this regard, following the legislative procedure, if the Decree is approved and published in the Official Gazette of the Federation, the implementation of the reform to the Judicial Branch must attend to the transitional provisions established by the Opinion issued by the Constitutional Points Commission of the Chamber of Deputies, which provides, among others, that with the entry into force of the reform, the extraordinary electoral process 2024-2025 will begin for the election of all the Ministers of the Supreme Court of Justice of the Nation, as well as half of the positions of Circuit Magistrates and District Judges; while the remaining half will be elected through the ordinary election of 2027.
Thus, since the Senate will have a period of 30 calendar days from the entry into force of the reform to issue the call for candidates to participate in the election, and given the lack of secondary and regulatory provisions, the Decree grants the General Council of the National Electoral Institute the authority to issue the necessary agreements for the organization of these elections. Those currently serving in these positions may participate in the extraordinary election on the first Sunday of June 2025. However, if they are not elected by popular vote, they must step down when the newly elected public officials take office.
3. Replacement of the Federal Judicial Council by the Judicial Disciplinary Court and the Judicial Administration Body
Within its articles, the reform provides for the disappearance of the Federal Judiciary Council, replacing it with the Judicial Disciplinary Tribunal, before which any person or authority may report any public servant of the Federal Judicial Branch so that they may be investigated for acts or omissions contrary to the law, the public interest or the proper administration of justice, including those linked to acts of corruption, influence peddling, nepotism, complicity or concealment of alleged criminals or when their determinations do not conform to the principles of objectivity, impartiality, independence, professionalism or excellence.
It is expected that the said Judicial Disciplinary Court will operate in Plenary Session and in Commissions: the Plenary Session will be in charge of substantiating and resolving in second instance the matters within its jurisdiction, being able to order ex officio or by complaint the beginning of investigations, attract procedures related to serious faults or facts that the laws indicate as crimes, order precautionary measures of coercion and sanction public servants who incur in acts or omissions contrary to the law.
In this regard, the Court will conduct the administrative liability procedure in the first instance through its committees, which will be made up of 3 members who will act as the substantiating and resolving authority in the matters within their jurisdiction. The resolutions of the committees may be challenged before the Plenary (which will resolve by a majority of 4 votes), on the understanding that, as the Plenary is a second instance body, the resolutions reached by it will be considered final and unassailable.
Likewise, the Judicial Disciplinary Court is designated as the body responsible for evaluating the performance of the Circuit Magistrates and District Judges who are elected.
The Judicial Administration Body is envisaged as the entity in charge of the administration, budget, evaluation and internal control of the Judicial Branch of the Federation, as well as the entity in charge of determining the number of circuits, territorial jurisdiction and subject matter specialization of the Courts. Its Plenary will be made up of 5 public servants, who will have a non-renewable term of 6 years.
In this regard, the Judicial Administration Body is empowered to prepare the Budget of the Judicial Branch of the Federation, which will be included in the Draft Expenditure Budget of the Federation.
In this regard, joint work is planned between the Judicial Disciplinary Court and the Judicial Administration Body, ensuring that the former is able to request the latter to issue agreements or execute resolutions to ensure the proper exercise of the federal jurisdictional function.
4. Budgetary measures
The reform provides that the remuneration received by the Ministers of the SCJN, the Circuit Magistrates, the District Judges, the Magistrates of the Judicial Disciplinary Tribunal, the Electoral Magistrates and other persons who make up the Judicial Branch of the Federation, may not be greater than that established for the President of the Republic in the corresponding budget.
For its part, and notwithstanding the Tenth Transitional Article of the reform establishes that the labor rights of the workers of the Judicial Branch of the Federation and of the federative entities will be respected, through its Seventh Transitional Article, the reform establishes that the Ministers of the Supreme Court of Justice of the Nation who conclude their term for not running or not having been elected in the extraordinary election of the year 2025 will not benefit from a retirement pension, except when they submit their resignation from the position before the closing date of the call.
The reform also provides that funds, trusts, mandates or similar contracts that are not provided for in the law may not be created or maintained in operation; which has the consequence of elevating to constitutional rank the elimination of trusts carried out on October 27, 2023.
5. New procedural rules
Finally, it is important to note that the reform makes two important changes to the means of control recognized in our legal system; the first is the establishment of a maximum period for the issuance of resolutions once the controversy is brought to the attention of the body and, the second, is the express prohibition elevated to constitutional level of giving general effects to the rulings issued through constitutional controversies, unconstitutionality actions or amparos.
In this sense, the Decree raises to constitutional level the prohibition not only of the general effects in suspensions granted in amparos against norms, which was already reflected in the Amparo Law with the reform published on June 14, but also in the substantive resolutions. In this line, the Decree prohibits the suspension of norms in constitutional controversies and unconstitutionality actions. Although the Regulatory Law of Article 105 of the Constitution, as well as the Amparo Law contemplates this limitation, the SCJN has interpreted the law in order to, in some cases, attend to a reading per person the rights already at stake, being able to grant the suspension.
Likewise, in the case of cases initiated prior to the entry into force of the reform, in the event that said procedures had not been concluded prior to taking office, the 6-month period provided for by the Decree amending Article 17 of the Constitution will begin again. If the resolution is not issued within said period, the public servant in charge of the matter must notify the Judicial Disciplinary Tribunal to justify said delay.
For the above reasons, we recommend that the relevant proceedings be submitted to trials and litigation that are currently underway as soon as possible, in order to expedite obtaining a resolution before the political-judicial transition scheduled for September 2025. Failure to do so risks extending procedural deadlines longer than initially anticipated due to changes resulting from the ongoing reform. Therefore, it is crucial to act diligently to avoid possible additional delays.
[1] https://www.gob.mx/cms/uploads/attachment/file/892010/REFORMA_AL_PODER_JUDICIAL__2_CS.pdf
[2] The second paragraph of article 17; the second, third, fourth, fifth, sixth, eighth, ninth, twelfth, thirteenth, fourteenth and fifteenth paragraphs of article 94; sections II, III, V and VI of the first paragraph of article 95; the first and second paragraphs of article 96; the first, second and third paragraph of article 97; the first, third and fourth paragraph of article 98; section I of the fourth paragraph, and the tenth, eleventh, twelfth, thirteenth and fourteenth paragraphs, all of article 99; the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, twelfth and thirteenth paragraphs of article 100; the first and second paragraphs of article 101; the first and third paragraphs of section II , and section X of article 107; the first and second paragraphs of article 110; the first and fifth paragraphs of article 111; the second, third, fourth, fifth and sixth paragraphs of section III of the second paragraph of article 116; and the first and third paragraphs of section IV, Section A, of article 122. A second paragraph is added to section VII, Section B, of article 20; sections I and II, as well as the third, fourth and fifth paragraphs to article 96; a second paragraph, with subsequent paragraphs being moved, to article 97; a fifth paragraph to article 98; a sixth paragraph, with subsequent paragraphs being moved, and a seventh, eighth, ninth, tenth and eleventh paragraph, with subsequent paragraphs being moved in their order, as well as a final paragraph, all from article 100; and a final paragraph to article 105 are repealed. The current second paragraph of article 95; the current second paragraph of article 98; the current tenth and eleventh paragraphs of Article 100.
[3] https://dof.gob.mx/nota_detalle.php?codigo=5678751&fecha=03/02/2023#gsc.tab=0
