Judicial Reform Initiative: the failure to include a package of secondary reforms poses a risk to the right of access to justice and effective jurisdictional protection 

Executive Summary:

• On February 5, 2024, the Initiative that reforms, adds and repeals various provisions of the Political Constitution of the United Mexican States to make significant changes to the organization and operation of the Federal Judicial Branch was presented to the Chamber of Deputies.  
• We believe that the reform will update various technical, legal, economic and operational challenges regarding constitutional trials that have been initiated prior to the entry into force of the reform and that, at the time, are still pending resolution, as well as those that will be processed after the entry into force, but during the transition period until the reform is consolidated throughout our legal system through reforms to the secondary laws that are necessary.

The reform presented by the Federal Executive to the Chamber of Deputies on February 5, 2024, proposes to modify various provisions established in the Political Constitution of the United Mexican States including, among others, articles 17, 20, section B, 94, 95, 96, 97, 98, 99, 100, 101, 107, 110, 111, 116, and 122[1] with which we seek, among others[2]:

• A new integration of the Supreme Court of Justice of the Nation;
• Modify the procedure for the appointment of Ministers of the Supreme Court of Justice of the Nation, Magistrates of the Circuit Collegiate Courts and District Judges by establishing a popular election procedure to fill such positions;
• Eliminate the Federal Judicial Council and replace it with a judicial administration body and a Judicial Disciplinary Court, whose decisions will be final and unassailable;
• Provide a maximum period for issuing a resolution on matters within the jurisdiction of the courts of 6 months from the time the dispute is brought to their attention;
• The express prohibition that judgments issued in amparo trials, constitutional disputes or unconstitutionality actions will in no case give rise to the suspension of laws with general effects is raised to constitutional level.

Although the study, ruling and, if applicable, approval of said initiative by the Chamber of Deputies and, subsequently, the discussion and approval in the Senate, plus the majority of the state legislatures, are pending, we consider that if the initiative is approved in the proposed terms, it would mean the starting point of a series of reforms that must subsequently be carried out in order to homologate all the secondary laws necessary to consolidate the restructuring of the Judicial Branch proposed.[3].

In this regard, and notwithstanding that the Eighth Transitory Article of said initiative grants a period of 180 calendar days to carry out the necessary reforms to duly comply with the proposed reform, we consider that the approval and implementation of the constitutional text, without the accompaniment of a package of reforms to secondary and regulatory laws, poses a risk to the rights that it seeks to preserve, among which is the right for every person to have access to the administration of justice in a prompt, expeditious, free and impartial manner.

That is to say, although the reform seeks to protect and safeguard the right of access to justice and effective jurisdictional protection, it will be through the modification of all the corresponding secondary legislation that the constitutional reform can be materialized. This is because the proposed constitutional modification involves great operational, economic, technical and legal complexity and, therefore, entails the participation and collaboration between various authorities that, although they do not make up the Judicial Branch, will directly impact the process to change its structure and operation.

Thus, although the restructuring of the Judiciary is being carried out at a constitutional level, its implementation necessarily brings up legal needs and questions such as: Will the body in charge of calling elections be a specialized administrative unit part of the National Electoral Institute or will it be necessary to create a new administrative body for the organization and oversight of said democratic process? How will the transition of matters be carried out for which there has been no resolution and which began prior to the reform, specifically with respect to the 6-month period provided for issuing a resolution? In the event that the opening of judicial offices is required, would it be necessary to wait for the calling and holding of elections for the formation or dissolution of said unit? In the event of the closure of judicial offices, what would happen to the people who were elected by popular vote?

Based on the above, it is important to note that the approval of the reform as it is proposed would entail a fragmented and interrupted implementation of the restructuring of the Judiciary, since no proposals have been made regarding the additional modifications that must be made to the applicable laws, a situation that increases the uncertainty of how the Judiciary will function if the reform is approved.

[1] 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.

[2] https://www.gob.mx/cms/uploads/attachment/file/892010/REFORMA_AL_PODER_JUDICIAL__2_CS.pdf

[3] Which, by way of example but not limitation, should include, at least, the Organic Law of the Judicial Branch of the Federation, the Amparo Law, the Regulatory Law of Sections I and II of Article 105 of the Political Constitution of the United Mexican States, the General Law of Electoral Institutions and Procedures, the General Law on Electoral Crimes, as well as the General Agreements issued by the Plenary Session of the Federal Judicial Council that regulate the judicial career, the conditions of judicial officials, the organization and operation of the Council, among others, and at the local level the Constitutions of the federal entities and the secondary and regulatory laws referring to the structure of the Judicial Branch.