The dispute over political power is transferred to the jurisdictional stage. Of the three powers of the Unionthe Judicial Branch of the Federation (PJF), seemed the only one that stayed out of the contests and political transformations that were happening in the country. That position changed, in part, because the members of the PJF itself began with political activism outside of their functions (which are jurisdictional); but fundamentally, because of the criticism of his performance, of his work. According to the reform initiative Presented by Republic President On February 5, 2024, the Power of attorneymaintaining an ever-deepening distance between the judicial bodies and Mexican society, which undermines their credibility and loses their legitimacy. Let’s talk about their direct election.
What is sought with the reform? Modify the Mexican judicial system so that citizens can participate in the choice of the Ministers and Ministers of the Supreme Court of Justice of the Nation (SCJN)the Magistrates and Magistrates of Circuitas well as the Judges and Judges of District. In addition to the Magistrates of the Electoral Tribunal of the Judicial Branch of the Federation (TEPJF), with the purpose that its members are responsible for the decisions they make towards society and that they are sensitive to the problems that afflict citizens.
The aim is for the heads of the PJF to have direct democratic legitimacy (elected by citizens), compared to the current mechanism, in which the Ministers of the SCJN are elected by the Senate of the Republic, from a shortlist proposed by the head. of the Executive Branch (article 76, section VIII, of the Federal Constitution). Although the heads of the SCJN are elected by the Senate, the criticism of this mechanism is that it is the elites of the majority political parties, the interest groups, who decide.
On the other hand, for the positions of heads of district courts and magistrates, the election is internally the responsibility of the Judiciary, in accordance with its internal appointment mechanisms, which are carried out by the Federal Judicial Council (CJF), through competitive examinations.
Where does the legitimacy of judges come from? From the academy, it has been established that the legitimacy of the Judiciary does not come from its appointment, but from its own function. That the people who carry out this important task meet a series of suitability and aptitude requirements to be able to carry out their work. In addition, it is an activity that is regulated, subject to rights and guarantees. Therefore, its legitimacy is given by compliance with the legal mandate and satisfaction of people’s human rights in conflict resolution. A judge must resolve, not according to what the majority (or minorities) say, but rather what the law says, what corresponds according to the legal and human rights framework, applicable to the specific case, according to the procedures and guarantees. established. Therein lies its importance for the division of powers, as well as for citizens.
Now how would the PJF holders be named? The reform initiative proposes a substantial change. Instead of the Ministers of the SCJN being appointed by the Senate at the proposal of the President of the Republic, the candidates would be elected by popular vote (direct and secret). But this election will not only consider the highest positions, but also the positions of Magistrates, Magistrates, and Judges will be elected. The proposed electoral process would take place every six years, coinciding with federal elections.
What would be the procedure to achieve direct election? One would think that the initiative to give greater democratic legitimacy to the PJF incumbents would consider a nomination and election procedure open to any citizen who meets the requirements established in the Constitution and in the Organic Law of the PJF. But that is not the case.
The initiative establishes a system of nominations of candidates that are reserved for the established powers. For example, for the position of Minister of the SCJN, it is proposed that the Executive Branch (through its holder) would nominate in an equal manner (equal number of men and women), up to 10 candidates; the Legislative Branch another 10 (corresponding to 5 for each chamber); and the Judicial Branch (through the Plenary of the SCJN), another 10. These will compete in an election to fill 9 available positions. These will be assigned to those who obtain the most votes.
For the positions of holders of District Courts and Magistrates, in accordance with the above, each power would nominate up to 2 people on an equal basis for each position.
So it will be the established powers who will have the right to make nominations, so that the citizens can choose among them. Yes, they will be elected by direct vote, but only from among the candidates nominated by the established powers. What limitations are observed in this mechanism?
First, it is a closed application, granted only to the holders of the established powers. It is not open to society, universities, or bar associations. Yes, citizens choose directly, but only among the candidates nominated by the other powers.
Second. This creates an unjustified interference in the hierarchy, chain of command and responsibility of the members of the PJF. If the Ministers are democratically elected by the direct vote of the citizens, why are the other positions such as magistrates and judges (who by institutional design must comply with the resolutions of the SCJN) nominated by other powers? Should they not be nominated by the ministers who won the election to be heads of the PJF, and are endowed with direct legitimacy, just like the head of the Executive and Legislative Powers?
For example, if we look at the election of the Executive Branch, (where the head is elected by direct vote), it is at his disposal to designate the members of his cabinet. Imagine that the positions of the heads of the different secretaries that would make up your cabinet were also elected, but that, in addition, the other powers could make nominations for those positions. Wouldn’t that be a form of interference? Obviously, yes, and doing so to the Judiciary would be a mechanism of interference.
A key point is that the transitional articles establish that the replacement of the current holders of the PJF would be in its entirety. That is, all the Ministers, Magistrates, Judges and Judges who are currently in office will conclude their assignments with the new appointments. It does not matter that they were appointed in accordance with the current legal framework; that their term has not yet ended; and that many Magistrates and Judges obtained the position through competitive examination. It would be a rule that would harm their labor rights, retroactively. Why does the reform not come into force as the terms of each public servant conclude?
The reform initiative seeks to change the way in which Judges, Magistrates and Ministers of the SCJN are elected, with the purpose of increasing legitimacy and confidence in the Judicial Branch of the Federation. By allowing citizens to elect the proposed candidates, it is expected that these public servants will be perceived as more independent authorities and representative of the interests of the people. However, the closed nomination system, granted to the different established powers, represents a serious obstacle to strengthening democracy and justice in Mexico, when it is intended to apply, not only for Ministers, but for all the holders of Power. Judicial of the Federation. A pernicious system of institutional interference can be generated, which does not help the independence, autonomy and functioning of the judicial governance model, to the detriment of Mexican society.
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