Citibanamex Update on Mexico’s Constitutional Crisis Gives Us Some Hope

Genevieve Signoret & Delia Paredes

(Hay una versión en español de este artículo aquí.)

Mexico’s judicial reform— ill-conceived, harmful to Mexico’s judicial system, and contrary to liberal democracy—has led to a constitutional crisis. In a recent research note, Citibanamex analysts Nydia Iglesias and Sergio Kurczyn indicate that there may be a way out. First they detail how the reform is flawed and what the constitutional crisis is about.

The reform is flawed, they explain, because[1]

it does not address the issues of corruption and impunity that prevail in Mexico and was hastily enacted with significant oversights. In addition to being inefficient, the popular election of judges, magistrates, and justices—unique in the world—misinterprets the role of the judiciary, which is not to represent the public but to uphold the law. Moreover, the low requirements for candidates and the short time frame for implementing the first, extraordinary version of a judicial election politicize the process, as the popular election will be preconfigured by lists of candidates controlled by committees dominated by Morena.

Then they identify the core constitutional question that has led to the current crisis:

The question raised by the challenge presented to the Court is whether a constitutional reform can be declared unconstitutional, either due to procedural flaws in its legislative process and/or because of its content, which could conflict with other articles of the Constitution, such as those guaranteeing the protection of human rights, for instance, or those establishing the separation of autonomous powers to ensure a system of checks and balances, or those committing the country to fulfilling international treaties.

They go on to narrate the events that have erupted in a crisis:

[Several] several judges issued suspension orders against the reform to prevent the preparations for the first extraordinary election of judges—scheduled for June 2025—from moving forward. In response to these suspensions, Congress and the President have decided to defy the representatives of the judiciary, arguing that the judiciary has no authority to rule on a legitimate constitutional reform. They further argue that the Court itself, ultimately, cannot declare unconstitutional a law that has already been incorporated into the constitution.

To reinforce this stance, a new constitutional reform introduced by Morena, which is currently in an accelerated approval process, would explicitly prohibit the Supreme Court from assessing the constitutionality of a constitutional reform and would combat the principle of non-retroactivity, to prevent the pending challenges against the judicial reform from succeeding. It is highly likely that, if this new reform is approved, it will also be challenged by various political forces, as it would undermine the primary function of the Supreme Court, as established by the Constitution itself, which is the ultimate interpretation of the Constitution.

The Legislative and Executive branches have indicated that they will not comply with a potential SCJN ruling invalidating all or parts of the two mentioned reforms. After the Court, there would no longer be any body with the authority to resolve this power struggle. This situation of fundamental and irreconcilable disagreement over the interpretation of the powers and scope of each authority and of the constitution itself constitutes a constitutional crisis.

A few days ago, the Court agreed to review the challenges to the already approved judicial reform. This Monday, the draft ruling, which the Court’s full bench will vote on next week, was made public. The presiding justice in charge of the draft, González Alcántara, argues that the Court is competent to address the challenged issue concerning the electoral aspect (the election of judges), and that the challengers submitted their case in a timely and proper manner (except for the local actors). He emphasizes that a general law, no matter how far it departs from the constitution, does not take precedence over it. He argues that since the reform’s various elements are being challenged, it must be assumed that the reform as a whole is being contested, given that it is an inseparable and interconnected legal system, and that the Court is not barred from modifying its interpretive criteria from previous rulings, as long as the reasons are explained. Central to the draft is the finding that the election of judges is unconstitutional and improper.

And finally they tell us about a possible way out:

González Alcántara suggests “self-restraint” by the Court to avoid prolonging the current constitutional crisis. Based on this argument, he proposes not halting the popular election of the Court’s justices through the controversial system established in the reform. However, he declares the election of the other thousands of judges and magistrates in the country unconstitutional. The Court’s full bench will vote on this draft next week, and for its approval, a qualified majority of eight votes will be required, out of the total eleven justices who make up the bench. It is unclear how that vote will turn out. If the draft is approved, it is uncertain whether the Legislative and Executive branches will comply. Judging by their recent statements, they likely will not. Nonetheless, there is still a chance that they too may exercise self-restraint, and this unprecedented crisis between powers may be resolved.

So, there is (some) hope.

 
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[1] The following and all subsequent quotations are translations to English generated by AI not reviewed for accuracy by the authors.