What does this week’s reform mean for Mexico’s judicial overhaul?
President Claudia Sheinbaum on Thursday promulgated a constitutional reform that prevents legal challenges against constitutional amendments, such as Mexicoโs recently enacted judicial reform.
The reform was promulgated via a decree published in the Official Gazette of the Federation (DOF) a day after the lower house of Congress approved the so-called โconstitutional supremacyโ bill.
A majority of Mexicoโs 32 state legislatures promptly ratified the reform, allowing Sheinbaum to sign it into law in quick time.
The reform makes modifications to two articles of the Mexican Constitution.
Article 105 now states that constitutional challenges or โactions of unconstitutionalityโ that seek to dispute โadditions or reforms to this Constitutionโ are โinadmissible.โ
Article 107 now states that lawsuits โagainst additions or reformsโ to the Constitution โwill not proceed.โ
The decree published in the DOF also states that โmatters that are in process must be resolved in accordance with the provisions contained in the present decree.โ
The reform would appear to prevent Mexicoโs Supreme Court (SCJN) from making a binding ruling on a proposal to strike down part of the judicial reform that was approved by Congress in September and signed into law by former president Andrรฉs Manuel Lรณpez Obradorย two weeks before he left office.
Indeed, Morena took the reform proposal to Congress precisely to prevent the Supreme Court and other courts from handing down rulings against constitutional reforms.
Even though the reform has been approved and promulgated, heated debate over whether the SCJN has the right to hand down a binding ruling on the judicial reform and other constitutional reforms continues.
Under the proposal of Justice Juan Luis Gonzรกlez Alcรกntara Carrancรก โย one of eight SCJN justices who submitted resignation letters to the Senate this week โย only Supreme Court justices would be elected and all other judges would continue to be appointed.
The government is planning to hold elections in 2025 and 2027 at which Mexican citizens would directly elected thousands of local, state and federal judges. The National Action Party filed a lawsuit with the Supreme Court against the judicial reform that allows those elections to occur.
Despite the DOF decree stating that the โconstitutional supremacyโ reform applies to โmatters that are in process,โ Justice Gonzรกlez asserted that justices can vote on his proposal next Tuesday as scheduled.
For her part, President Claudia Sheinbaum asserted this week that the Supreme Court doesnโt have the authority to legislate or to strike down a constitutional reform that โfollowed all the [legislative] processes that the constitution establishes.โ
No judge can repeal a constitutional reform, says Morena leaderย ย
Speaking on Thursday afternoon, Morenaโs leader in the lower house of Congress, Deputy Ricardo Monreal, asserted that no judge, magistrate or Supreme Court Justice can hand down a ruling against a reform that has been approved by the Congress and subsequently ratified by state legislatures and promulgated by the president.
โItโs not valid. They donโt have jurisdiction, they donโt have authority โฆ to do that. โฆ What we did [with the โconstitutional supremacyโ reform] is reaffirm what the Constitution already says [regarding] the unchallengeable nature, the inadmissibility of recourses and actions against reforms and additions to the Constitution,โ said Monreal, who has a doctorate in constitutional law.
The Morena party leader claimed that the โconstitutional supremacyโ reform is the โmost profoundโ reform โin the 200 years of the life of the country.โ
He also said that the legal principle of non-retroactivity โis not observable in the case of constitutional reforms.
Monrealโs view is that as the โconstitutional supremacyโ reform applies retroactively, the Supreme Court is prevented from handing down a binding ruling on the judicial reform given that that the matter is already โin process.โ
The Animal Polรญtico news website reported that in accordance with the โconstitutional supremacyโ reform, previous rulings against the judicial reform and โthe project that Justice Juan Luis Gonzรกlez Alcรกntara is proposing to declare unconstitutional the election by popular vote of judges and magistrates would have to be dismissed โ that is to say suspended.โ
On that point, Gonzรกlez, and others, disagree.
Gonzรกlez: โWe will have a constitutional crisisโ if the government doesnโt comply with the SCJNโs ruling
During an interview with Grupo Fรณrmula on Friday, Gonzรกlez was asked what would happen if the Supreme Court hands down a ruling against part of the judicial reform and the government refuses to comply with it.
โWe will have a constitutional crisis and all Mexicans will have to absorb and suffer the consequences,โ the justice said.
Eight of 11 justices would have to vote in favor of Gonzรกlezโs proposal in order for the SCJN to hand down a ruling against the judicial reform provision allowing the direct election of virtually all Mexican judges. The eight justices who tendered their resignations this week to protest the governmentโs judicial overhaul remain on the court for now and appear likely to vote in favor of the proposal.
Gonzรกlez said that non-compliance with a Supreme Court ruling against the judicial reform would relegate the rule of law in Mexico to โhistory books.โ
He characterized his proposal to only allow the election of Supreme Court justices as a political-legal solution to the uncertainty and division created by the judicial reform.
โI believe that the president will have to reflect [on what to do], she has these days to do that, these days that are so important for the people of Mexico,โ Gonzรกlez said, referring to the period before the 11 justices will consider and make a ruling on his proposal on Tuesday.
The justice said that Sheinbaum โwill have to reflect on the damageโ not complying with a SCJN ruling โwould cause to the institutionsโ and โthe credibilityโ of Mexico as a country that respects the rule of law.
In a separate interview on Thursday, Gonzรกlez said that non-compliance by the government with an SCJN ruling would have an impact on foreign investment in Mexico and โour relations with trade partners with whom weโve established a series of international treaties and bilateral agreements.โ
โThe lives of all people would be affected,โ he added.
Gonzรกlez is not alone in saying that Mexico could be headed for a constitutional crisis.
Among others who have made the same or similar remarks is former Mexican president Ernesto Zedillo. In an opinion article published in The Washington Post on Friday, he wrote that Sheinbaum is โadvocating that the governmentย ignore court rulingsโ and โfuelingโ a constitutional crisis.
Analyst: Gonzรกlez is trying to throw a โlifelineโ to the governmentย ย
During a panel discussion on a Mexican television program, analyst and writer Viri Rรญos said that Gonzรกlez is โtrying to throw a lifeline to the governing coalition,โ which includes Morena, the Labor Party and the Green Party.
โHeโs proposing that the most difficult part [of the judicial reform] to implement, which would be the mass election of judges,ย โฆ not be implemented,โ she said.
La SCJN mandรณ un salvavidas ๐ a Morena con el proyecto de Alcรกntara.
Pero es un salvavidas envenenado.
Acรก comentรฉ por quรฉ: pic.twitter.com/9csDDWl7kS
โ Viri Rรญos (@Viri_Rios) October 31, 2024
Rรญos said that there is an argument in favor of the government taking that โlifelineโ because it would remove the problems of โinstability in the marketsโ and the โconstant fightโ with Mexicoโs judiciary.
However, she argued that the government shouldnโt take the lifeline Gonzรกlez is attempting to offer because it is a โpoisoned lifeline.โ
To accept the lifeline, Rรญos said, the government would have to accept that it is allowing the Supreme Court to โstrike down constitutional reformsโ โ which various officials, including Sheinbaum, argue it doesnโt have the power to do.
โThatโs what itโs about. I think that is very dangerous because this is basically putting democracy in the hands of 11 people and going from being a democratic electoral system to being a system that appears much more like a judicial aristocracy,โ she said.
With reports from Reforma, Radio Fรณrmula, La Jornada, Milenio, El Financiero and Animal Polรญticoย
Source: Mexico News Daily