Judicial Reform Starts at the Top

President Ernesto Zedillo was elected in August 1994, promising a far-reaching judicial reform that theoretically would reduce corruption, bring state officials under the surveillance of the law and provide Mexican citizens with equal access to justice. Important as this reform is, citizens are yet to observe direct benefits from it.

Whether the power of the federal courts can actually function as an effective mechanism for enforcing citizens’ rights and controlling state arbitrariness and corruption will depend on several factors. Will judges be free from government control? Will they hear cases impartially and dispense justice in a timely manner? Will judges be able to enforce their decisions against state officials?

In a shrewd political maneuver, the president was able to dissolve the old Supreme Court, which was composed of 26 justices, most of whom were seriously corrupted, extremely subordinated to the interest of the ruling party and its bureaucracies or simply incompetent. In its place he created a more independent Supreme Court, composed of only 11 justices with far better credentials. They had to be confirmed by the Senate and will serve 15-year terms. This process may prove important for the future independence of the court, particularly in consideration of the growing strength of opposition parties and the likelihood of a more effective system of checks and balances.

The new Supreme Court also was given more power: It can adjudicate conflicts arising among different branches of government with respect to the constitutionality of their acts, a faculty not granted to the previous court. In an era where the long-lasting Institutional Revolutionary Party (PRI) is increasingly losing power to opposition parties, especially at state and local levels of government, the newly acquired power of the Supreme Court has proved to be useful, providing a new institutional arena for the settlement of partisan conflicts.

The new Supreme Court also was given more powers of judicial review. Decisions regarding constitutional rights now can have “general effects,” meaning that if the court decides that a law violates individual rights or constitutional principles, it should be rendered inapplicable. However, the majority of cases will not be eligible for these general effects, because only one-third of the members of Congress and other major state officials, plus the attorney general, may petition the Supreme Court to review the constitutionality of laws.

Important as these changes are, their relevance is mostly limited to the interaction among political elites. Citizens must employ the traditional channels in any matter that involves their interaction with government authorities. One such channel is the “Amparo” procedure, a form of habeas corpus, which must be petitioned through the federal courts. In theory, the procedure provides citizens with mechanisms to defend their individual rights, either blocking the enforcement of unconstitutional laws or preventing state officials from affecting liberties in manners not explicitly authorized by the law. In practice, the procedure fails its purpose. In seeking to dispense justice in a timely manner, federal judges often sacrifice quality in their decisions. They often apply blind legal formulas that allow them to discard many cases. Perhaps more important, most federal judges still operate under an old “statist” mentality: Citizens do not possess individual rights a priori unless the state grants them that privilege. Cases are decided applying a “strict” interpretation of the law, which in practical terms means that the overwhelming majority of the Amparo claims are unsuccessful.

In Mexico, most laws still are written to maximize executive discretion and the ability of the bureaucracies to control the lives of the citizens. Thus when federal judges claim to apply the laws in a “strict” fashion, what they really are doing is enforcing principles that do not enhance individual liberties and rights.

In a system where judicial conformism, lack of initiative and subordination to the executive’s whims traditionally have been rewarded, transforming the mentality of the federal judiciary certainly will not be easy.

But the most serious challenges regarding judicial reform are at the local levels, where most criminal, commercial and civil conflicts are settled. This is the realm most relevant to the everyday life of Mexicans. Most local courts can be characterized by the following picture: no definition of the distinct branches of government, meaning that cases are decided according to the interests of governors or local attorneys; an endemic shortage of resources, which increases the vulnerability to bribes and pressure from the politicians who set the courts’ budgets; poorly trained and poorly paid judges and law clerks, and understaffed courts.

President Zedillo’s judicial reform left all of these problems untouched. Meanwhile, Mexican citizens, particularly the poorer ones who do not possess the capacity to bribe or to exert influence, must seek justice in a dramatically corrupted system where representatives of the police, the prisons, the courts, the local executive branches and the legal community all meet. Not surprisingly, the majority of the population is still complaining, even more bitterly than back in 1994, of a “lack of rule of law,” a term that has come to mean something different depending on who is speaking.