Lágrimas Suficientes para llenar el Lago de la Luna: Pt. 1
“Destiny, fate, dreams… These unstoppable ideals are held deep in the heart of man… As long as there are people who seek freedom in this life, these things shall not vanish from the Earth!”
- Eiichiro Oda
The American continent’s cry for liberty echoes throughout the annals of history. A howling bellow laden with pain, passion, and - perhaps most importantly - hope. A steadfast declaration that manifested, both in theory and in practice, that longing that lies deep in the heart of every human being: to be treated with dignity both by authority and by his fellow man to, someway, somehow, inch closer to understanding the meaning of freedom.
One September 16, not unlike this one, Miguel Hidalgo galvanized the Mexican independence movement, beginning the telenovela-esque romance of the Mexican people with self-government and, at a later point, with representative democracy. Of course, like in a telenovela, we have had great patriotic villains and heroes - the dividing line between them not always clear - who have starred in our experiment with the government of, by, and for the people.
That our democracy is imperfect? Yes, it is. I think it would be somewhat naive to ignore that, between the end of the Mexican Revolution and the turn of the millennium, it could hardly be said that Mexico was a country with a healthy democracy. The hegemonic party in power had insisted on consolidating and entrenching its authority through repressive and manipulative tactics, both practical and legal, which were premised on the idea that, because the revolution won, the revolution would have to go on - echoing those cries for freedom that took place 100 years after Hidalgo's during the revolutionary war period. However, even after the dawn of the 21st century, and now endowed with a multi-party system with important and innovative checks and balances, Mexico has faced the reality that democracy has not benefited everyone equally: the mother of all evils, inequality, has reared its ugly head and especially for those in the worst circumstances, has brought into question the post-revolutionary status quo that promised, but did not deliver.
Perhaps we have a bad streak with centenarians, or perhaps fate is sending us a message, but once again we find ourselves at a complicated crossroads. Words fail to encapsulate what happened last September 11 at Casona de Xicoténcatl in Mexico City's Historic Center – I swear, it’s almost as if that date is cursed. I will not delve too deeply into the vitriol that has characterized the political debate surrounding the judicial reform, especially on the part of our representatives. In my opinion, both the dominant MORENA party and the opposition parties have spent enough time labeling each other as authoritarians or retrograde conservatives, respectively, instead of having a serious and serene conversation about what the transformations that the reform of the judiciary entail. I think it suffices to see the last debate in the Senate before the approval of the reform where the Presiding Senator was struggling to maintain order, particularly during Miguel Angel Yunes Sr.'s presentation.
Likewise, in my opinion, it is a bit redundant to mention all the morning conferences in which President Andrés Manuel López Obrador questioned the actions of judges: on the one hand, it would be a very long list, and on the other hand, perhaps, the quantity of messages does not matter as much as their content (an idea that I partially share, but that will be for another reflection).
Simply mentioning the judicial reform raises vehement and profound disagreement, making it clear that this has been a hard and terse process. But, in my opinion, said characterization is not contrary, in the strict sense, to what is expected or what can be expected from a representative democracy. The legislature and the executive are those branches of government whose political nature may be assumed: anyone watching a session of the Chamber of Deputies, of the Senate, or of the President in his morning conferences, would not question the fact that each of these actors present their partisan positions. I, for one, would be concerned to see a Senate and a Chamber of Deputies in which all elected representatives agree - an idea that evokes the image of the Chinese Communist Party under Mao, Stalin’s Russia, Mussolini’s Italy, or Hitler's Cabinet during the height of the Nazi regime; all straight; all applauding; all in agreement. Democracy, at least its ideal, parts from the recognition of the infinite universe of individuals who, each with their own dreams, abilities, and opportunities, will necessarily run into other human beings and find disagreement. But precisely because it is an arduous and conflictive task, the idea is that the process of democracy should result in a solution that is good enough for the whole population: good enough though not perfect, since a perfect solution for one segment of the population implies an inconceivable solution for the other.
I believe sometimes we forget that winning an election, even if said election is won by a devastating majority, does not then give a blank cheque to the person in power. Let’s run with that thought though: let us presume that the ECAB party, like MORENA, won around 70% of popular support giving me the presidency, the Chamber of Deputies, and real possibility to win every debate in the Senate; does that then mean that I can use that majority to, let’s say, put everyone that disagrees with me in jail? How about another one? Given my majority, does it then follow that I can forcefully move a particular ethnic group to specific parts of the city that just so happen to have limited access to essential resources and, what’s more, are heavily policed? At least to me, these ideas are anathema to what a democracy should be. Democracy implies, yes, a legitimacy in origin (legitimidad de origen) but it also requires a legitimacy in exercise (legitimidad de ejercicio). It’s not enough to access power through democratic means; it is also necessary to govern in a democratic manner.[1]
All this to say that it is precisely in those situations in which one of the political powers makes a decision that is questionable from the point of view of the Constitution, a decision where one sector of the population’s interests are overemphasized, that the last line of defense enters the democratic game: the judiciary. The judiciary in a democracy governed by the rule of law is the branch of government that oversees the defense of minorities. Once again. Political life is premised on a contest of wills, in which each party will attempt to convince their constituency to support them to maximize the interests of that sector of the population; the outcome of the contest creates winners and losers; but just because the majorities win does not mean that they can do whatever they want.
If the 'golden rule' of democracy were that whoever obtains the majority in a given legislative or presidential election has a blank check to do whatever they like with the losers of that election, the rights of this political minority would be systematically violated. A reality which, in and of itself, would call into question whether we are even in a democratic system as a result of the violation of the basic premise of equality. The golden rule, thus, has a nuance: the ‘majority rule’ has as its primary and primordial limit the respect for the human rights of all citizens premised on the principle of equality - this, giving protection to the interests that could be affected by a political power that seeks to maximize the benefits to the sector of the population that elected them. The judiciary performs this important labor, which as may be intuited, must necessarily be carried out in an independent and impartial manner.
We could well go through the domestic and international jurisprudence on the subject - and that is the purpose of the essay that I will publish in the following days :)- but, in my opinion, this can be intuited from common sense.
Example. Let's assume that in a relationship there is a deep disagreement. One partner does not want to give a hair's breadth to the position of the other and vice versa. The situation has reached such a level that the couple wants to break up but is, nevertheless, interested to see if there is a chance to save the relationship. In an ideal world, with whom do these people go for advice? With the family of one or the other? That would give the appearance that the person 'deciding' is partial to their family member. I, as I wish it were for many of us, have a deep love for my family and, thus, even if I were well versed in psychology, I believe I could hardly separate my love from my advice; my interpersonal ties from my profession.
In the judiciary the logic is somewhat similar: Why don't we give the political powers the competence to interpret and even repeal? Because, again, it is presumed that they will act based on partisan interests that would necessarily prime the interests of the sector of the population on whose vote their permanence in the legislature depends: for a few, not for all. This, in turn, arises from the inherent pressures that come from the electoral mechanism.
On the one hand, the electoral mechanism is considered to be the most suitable method for ascertaining the popular will; providing for the possibility for every citizen to vote for one candidate or another recognizes the inherent dignity of those individuals insofar as it ensures that their opinion was part of the decision-making process. On the other hand, however, it is an important accountability mechanism to check whether platform promises were fulfilled. If the answer is negative, the citizenry has the right and the ability to change the political direction of the country by voting for an alternative political project; thus, using the example of the 4-year term of office of deputies, political agents fight against the clock to prove that their promises had results.
“... in my more or less informed opinion, democracy is a promise: a promise that the people make to each other to operate within an institutional framework, some rules of the game, which, on the one hand, ensure that the exercise of legitimately obtained public power is subject to the limits established in a constitution and, on the other, promote happiness and human dignity. In other words, democracy is a promise with two facets: one that enables and one that limits, both of which are inherent and interdependent.”
For legislators and for the president this mechanism has a certain logic and, indeed, nourishes democracy by making a healthy level of alternance in political power possible: members of these two branches come to the elections with platforms and positions on various areas of political life; with these platforms in hand, at the end of that official’s term, the citizenry can check whether they fulfilled their promises. Ok. Awesome. Wow.
But in an electoral context, or rather, applying electoral logic to the judiciary, what are judges expected to do? With what material will they be able to arrive at the elections, either to demonstrate their previous positive performance or to present an alternative?
One thing that has been overlooked, in my opinion, throughout this reform process is that through its approval judges would no longer only be judges, but every 6, 9, or 12 years, they will have to become politicians. It is worth noting that even though only certain classes of judges can be re-elected (Circuit Judges, as well as District Judges), in my opinion, the problem arises not necessarily from the possibility of re-election, but from the change of role that the popular vote brings about. How can judges be impartial and independent with these new pressures?
Judges will have to try to convince their voters of something. What is that something? At the moment the reform leaves it open.[2] I, however, see two alternatives both related to the idea of justice:
1) A doctrine of legal interpretation: an open-ended justice platform.
2) Concrete results in terms of rulings: a closed justice platform or, at least, with a clear and quantifiable objective.
For the moment, let us focus on no. 1). The first, if the secondary legislation provides the necessary guarantees, does not seem to me to be a manifestly bad idea. Judges give the population their vision of justice, which does not affect a concrete case, but would give voters an idea of how the judges would resolve the cases. It is open-ended in that it does not promise concrete results but instead gives a general direction in which justice will be carried out.
But just because this possibility could be accommodated in a system that demands judicial independence and impartiality does not mean that it does not have its own problems. The basic premise of the reform, as its explanatory memorandum clearly states, is the "democratization of justice" to guarantee that the elected judges "represent the different visions that make up Mexican society".[3] Va. Let's see.
This implies that, by submitting the mandate of the judges to a popular vote, guided by the National Electoral Institute, BTW,[4] the process must have the basic elements of an election: individual, universal, secret vote; and that the election be periodic, free, and fair.[5] In particular, these requirements have a logical consequence, as in the vote of the legislature, there will be losers and winners; and, moreover, the people will be able to give them a name and a face. There will be constituencies (to use the language of political science) in which a judge with a progressive (evolutionary) interpretative doctrine wins, and others in which a judge with a conservative (or traditional) reading of the law will win. Again. In a democracy someone wins, and someone loses. But if all those judges who win are from a particular ‘party’, then there would be a manifest of incompatibility of the mechanism with democracy, or, at least, there will be serious doubts about the legality of the selection mechanism of those who participate in the electoral contest.
The above, as I mentioned in passing, results in people having a minimal idea of what to expect from the rulings of a given judge: they will know who the 'conservative' and 'progressive' judges are and will have an idea of whether they will be sympathetic to their position. Here I want to mention that the use of words such as conservative or progressive, or even traditional or evolutionary in legal practice, brings with it a political connotation that, however much we may want to ignore it, is there. We have examples of how the population manifests itself in favor or against a first, second, or last instance judgment many times labeling it as conservative or excessively progressive: in the USA, Dobbs v. Jackson being an example of the former; and Roe v. Wade being an example of the latter. Each one of us deciding what label we are going to assign depending on our political ideologies, not legal ideologies, since we do not live in a society composed purely of lawyers (and what a good thing that is indeed). Then, people interpret judicial decisions based on the frame of reference they have; and given that an important part of the population does not have the legal knowledge to evaluate them according to the values and principles of legal practice, decisions which may well be correct according to law, may be questioned for extra-legal reasons. As a result, even if a judge's decision is based on a judicial ideology, an ordinary citizen may well understand it as the judicial manifestation of a political ideology: even if that conclusion is incorrect.
“the tides of the time may well change direction, as may the captain of the ship, but the rules of the game are what create the keel; the rule of law and human rights form the sail. Although the captain may steer the ship one way or another and the ebb and flow of the ages may shift, the strength of the keel determines whether the ship will sink, and the sail is the only thing that keeps it moving through the tempest.”
If this is the way things turn out, a citizen who is judged by a person who is not akin to the ideology closest to his own, in my opinion, will have an objective basis to believe that the decision was not impartial or that, at least, there was not a sufficient appearance of impartiality in the resolution of the ruling. And the above, it should be noted, even before the citizen is in front of the judge: with a name and a face in hand, citizens will be able to evaluate the previous campaign of the judge and get an idea of how he/she will resolve their specific case. Once judgment has been rendered, the same citizen will be able to see if the campaign promises yielded results.
And, while we are at it, what happens when a judge is presiding over a case brought forth by one of their electors (their constituency if you will)? Should the judge be recused, or recuse themselves, bearing in mind that the judge could be said to have a direct interest in the case given their position derives from the initial or continued support of the person in front of them? Or, on the contrary, should the judge just do their thang so that, once judgment is rendered, the citizen can evaluate their performance and hold him accountable for not keeping their promise of justice?
That is, holding a particular judge directly accountable for not keeping his promise in the judicial campaign (to call it so for the time being).[6] The above is no longer an opinion on judicial ruling, to which everyone has and should have a right, but a sort of micro-impeachment in which at the core of it all, either immediately after the completion of their matter, or via the electoral process, what is being done is to remove the judges’ mandate based on their political alignment.
In a sense, the “closeness” of the judiciary to the “people” depends, in large part, on the historical reality of the country at a given time and on the subjective assessment of the voters of their zeitgeist (the spirit of the times). Today, the pendulum is on the left, and if this reform is sought, it is because, at least for the next 6 years, it is expected that the left will continue to dominate the ballot box. Tomorrow the pendulum could well be on the right, who knows. But what I do know is that the purely legal issue is, no matter how much the political agents say the contrary, that, if in the next electoral period of the legislature and the executive the opposition wins, the now hegemonic MORENA will have to play by the rules of the game that they themselves established.
Let’s be honest here, I doubt that when the shoe is on the other foot the decisions of new 'conservative' judges will be accepted by MORENA even if they were elected by ‘the people’ through the very mechanism that same party established and that was going to, supposedly, bring justice closer to "the different visions that make up Mexican society".
I, at least, consider myself a leftist (which of course depends on the meaning given to that category in a given country), but I recognize that conservative views also make up Mexican society, or any society for that manner; they are legitimate by the mere fact that they emanate from citizens living in a democracy; and if we discount them only because they come from a particular social stratum, we will be taking away the dignity and autonomy to decide from a sector of the population. And the same goes the other way eh, don’t think you are blameless in all this circus: conservatives. The guiding maxim, at least for me, is the following: I may so disagree with your position that I never see the possibility of agreeing with you; but I will fight with all my might for your right to disagree with me. Leftist, generally yes; but a Democrat (not the American kind), always :)
But that is precisely what democracy is all about: the tides of the time may well change direction, as may the captain of the ship, but the rules of the game are what create the keel; the rule of law and human rights form the sail. Although the captain may steer the ship one way or another and the ebb and flow of the ages may shift, the strength of the keel determines whether the ship will sink, and the sail is the only thing that keeps it moving through the tempest.
And I do not want this to be misunderstood. I do not see the judiciary as being integrated by machines that will simply execute and implement the judicial reform without any objection. The courage displayed by the judiciary in particular, and parts of the Mexican legal sector in general, are proof that we will fight for what we consider to be in accordance with the demands of justice in expression of what the Inter-American Court of Human Rights called the right to defend democracy.[7] I simply believe that it is important to recognize that the introduction of a new political role that the judge will have to adopt brings with it pressures inherent to elections and, if we think about it, to politics: if we want to be closer to the people, the people have to know enough about the judicial candidate to vote, or not, as reflected in the high abstention rates in a significant part of democratic countries which then brings into question whether it’s a good expression of popular will to begin with; if we want to be closer to the people, electoral promises must be manifested in reality, on threat of removal; if we want to be closer to the people, we have to take into account political considerations as they are the positions closest to those of the people from whose legitimacy our position derives. If we want to continue this course, I think we may be throwing the baby out with the bassinet.
For the moment we will not address possibility No. 2), as we will leave it for another essay.
Before closing, however, I think it is important to be fair with the ruling party, or at least with the interests it claims to represent. To do so, I want to make something very clear about my position: justice in Mexico has a serious problem and something must change. A sector of the population, in my opinion with a rational-subjective criterion, does not see it as the bastion of democracy, but as an institution that drifts towards clientelism and favors the interests of the few to the detriment of the many. A very concrete example: the massive impunity of femicides in our country - either due to excessively procedural or formal causes, or as unfortunately happens, due to corruption. If a collective as large as women can, time and time again, be left by the wayside by those who should protect them, it is a bit difficult to trust those guardians. Don’t you think? Another one, it’s also difficult for communities in regions whose existing infrastructure makes access to justice difficult, as a matter of fact, to believe in a Court they’ve never seen. Don’t you think? One more, it is also difficult to believe in a justice system that does not give quick answers to the problems they are presented with. Don’t you think?
And to be very honest, I think part of the blame lies with us: legal operators. Not in the sense that we drove the reform or even that we were the proximate cause. But rather that we have neglected the connection we should maintain with the citizenry. In my opinion, we jurists have a very big problem with communicating complex legal ideas to people who are not lawyers; I think that sometimes we justify it with the need to be precise and complete in our argumentation; we use language that is not very accessible to the general public; we go on for pages and pages explaining our position (as even this paper reflects :| ); and if someone wants to know our opinion, they have to read 40 pages of an academic article with citations that condition a large part of the arguments included therein. Don't get me wrong, that's what I love about the job, and in jurisdictional fora it is necessary; but I recognize that it can be a bit annoying, and almost feel condescending, to the general population. Justice should be of, by, and for all; not only understandable, fundamentally, by a reduced sector of the population that jealously protects legal knowledge.
If we add this to the fact that jurists, in general, come from a specific social stratum, because of the economic and temporal burden involved in studying law, entering the legal profession and prospering, and here I include myself, I believe that the elitist critique of the legal strata is well founded. That things are changing slowly? Yes. That the transition is too slow? That, I don’t know. And all the above, I believe, has resulted in a rational resentment of legal practice; justified, perhaps not, but rational, nonetheless.
Thus, this series of reflections on the reform of the judiciary will seek, as much as possible, to communicate the most troubling issues in a slightly more accessible way. In this first blog, we have failed in length -oops- but take note that I have tried to be accessible in my language or have at least tried to throw in a joke here or there -I once heard that a society that has a sense of humor has a bright future.
This is the first: I hope to improve in the following ones.
At the moment I have seven blogs planned of a lesser length than this one in which I will explore the various facets of the judicial reform, pointing to those things that are cause for concern to me. The following entries in this series will have more, shall we say, academic content to explore some of the slightly more technical elements of the reform and whose implications, perhaps, go unnoticed or that I, in my nerditude, overemphasize.
The structure I have planned for the moment is as follows: 1) this first blog serves as an introduction, in which I expose, in broad strokes, some central ideas that I will deepen in later pages; 2) in the following days I will carry out, as far as possible (as Hannah Montana once said nobody's perfect), an analysis of some of the most important problems facing justice in Mexico, if you don’t diagnose the disease it’s impossible to cure it; 3) next, I will delve into the jurisprudence of the Inter-American Court of Human Rights and some ideas from political science to explore some additional problems regarding the direct election of judges; 4) then, using the same sources, I will explore the reduction of the judicial mandate and the personal consequences of the reform (on the judicial career, retirement, etc.); 5) then, and here I am going to have some fun, we’ll focus on the novel organs: the Tribunal de Diciplina and the Órgano de Administración; 6) then I will talk about the Supreme Court in particular, and the problems I see regarding jurisprudential consistency; 7) and, finally, I will make some final reflections and conclude, most likely, with a meme.
We’ll see if I draft more or less blogs depending on what circus we see in the following days. And I do say WE here, since I am incredibly interested in knowing your thoughts and ideas on the subject that I will try to use them to enhance the reflections, or should any of you like to disagree, to engage in a discussion.
Oh, and before I forget, my intention will be to write all the blogs in English and Spanish. This time, I started with Spanish: it came from the soul, what can I say. But it may happen that I start in English with other things. I will try to translate each blog so that two are published per week: one in English and one in Spanish (I don't know why I say two, but we'll see- tee hee).
This is for a personal reason: I think it is important to recognize, as it took me a long time to do so, that many of our compatriots have left their homeland to find a future in other latitudes. The life of an immigrant is difficult; many times, I believe that we live ever in search for what makes us feel that this or that place is our home: in search of something to fill that void. But I must say that, even when it is found, very few things compare to the smells of the markets in Oaxaca; to the warmth of that northern sun on the way to a cabrito in Monterrey; to that characteristic sound of the organ grinders on the way to the Zócalo; to the joy of our people, even in the most difficult moments (canta y no llores, right?).
Perhaps, all the above is but a memory of a child who left; of a Mexico that no longer is, or perhaps never was. But what it is, is my dream of what I want Mexico to be for all Mexicans: here, there and everywhere; of yesterday, today, and tomorrow.
By including more languages, we will be able to expand our reach ... ojalá...
Now, seriously, closing -oops-.
I want the present work to be one more voice in the intense debate that my country will go through; and as I said, somewhat humorously, that is a wonderful thing. Democracy allows, and in my opinion should propitiate, the development of each individual's personality in the direction they decide; and it is from this great variety that the valuable debate that, theoretically, should take place in the deliberative arenas of the State emerges. But here that’s the thing: the legislature in particular, and the executive in a somewhat reduced form, are the powers of the State in which "the different visions that make up Mexican society" are represented and in which they can vociferously debate their positions.
As I said earlier, in the end, and in my more or less informed opinion, democracy is a promise: a promise that the people make to each other to operate within an institutional framework, some rules of the game, which, on the one hand, ensure that the exercise of legitimately obtained public power is subject to the limits established in a constitution and, on the other, promote happiness and human dignity. In other words, democracy is a promise with two facets: one that enables and one that limits, both of which are inherent and interdependent.
Let us fulfill our promise: for ourselves and for those that follow.
- E. Amor Vázquez
[1] Article 3 of the Inter-American Democratic Charter “Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government.”
[2] Indicating in its Article 96 that "[t]he law shall establish the form of campaigns, as well as the restrictions and sanctions applicable to candidates or public servants whose manifestations or proposals exceed or contravene constitutional and legal parameters." Own translation.
[3] This from the Judicial Branch Reform Proposal of February 12, 2024.
[4] By the way.
[5] Ex Article 3 of the Inter-American Democratic Charter.
[6] The new wording of Article 97 in fine indicates the following: "Any person or authority may report to the Judicial Disciplinary Tribunal facts that could be subject to administrative or criminal liability committed by any public servant of the Federal Judicial Branch, including ministers, magistrates and judges, in order for it to investigate and, if appropriate, punish the conduct denounced. The Judicial Disciplinary Tribunal will conduct and substantiate its proceedings in a prompt, complete, expeditious and impartial manner, in accordance with the procedure established by law. Any person or authority may report to the Judicial Disciplinary Tribunal facts that may be subject to administrative or criminal liability committed by any public servant of the Federal Judicial Branch, including ministers, magistrates and judges, in order for it to investigate and, if appropriate, punish the conduct denounced. The Judicial Disciplinary Tribunal shall conduct and substantiate its proceedings in a prompt, complete, expeditious and impartial manner, in accordance with the procedure established by law." Own translation.
[7] I/A Court H.R., Case of López Lone et al. Case of López Lone et al. v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of October 5, 2015. Series C No. 302. Paras. 153 and 164.
