The reform to the Judicial Branch, approved by the Congress of the Union and which contemplates the creation of the Judicial Disciplinary Tribunal (TDJ), does not contain sufficient safeguards to prevent the disciplinary regime for judges, magistrates and ministers may become an instrument of political pressure, the purposes for which it was created may be altered and it may become a tool to pressure judges to modify their decisions and judicial criteria, experts warn.
According to the reform, The court in question will be the body of the Judicial Branch of the Federation responsible for evaluating and sanctioning the conduct of judges.
It will be made up of five magistrates elected by popular vote, from the lists proposed by the Federal Executive, the Chambers of Congress and the Supreme Court of Justice of the Nation (SCJN).
They will hold office for six years, without the possibility of re-election, and their decisions “will be final and unassailable.” and, therefore, no trial or appeal is admissible against them.”
In addition, it may order, ex officio or by complaint, the initiation of investigations, attract proceedings related to serious offences, order precautionary and coercive measures and sanction those who, in its opinion, incur in “acts or omissions contrary to the law, the administration of justice or the principles of objectivity, impartiality, independence, professionalism or excellence, in addition to the matters determined by law.”
It is not clear what is meant by this.
Since these are indeterminate, vague and subjective concepts, there is room for discretion in determining responsibility. and this undermines the legality and legal security inherent to the rule of law, said Carla Huerta Ochoa, researcher at the UNAM Institute for Legal Research.
Furthermore, if one takes into account that their decisions will be final and unassailable and, therefore, no trial or appeal can be made against them, it is a delicate matter, “Because there cannot be any body that makes decisions that cannot be challenged, especially when they put your right to work at risk,” he said.
According to the reform, any authority will be legally empowered to file complaints or reports, and they can even be anonymous. In the opinion of the specialist, this should be regulated because the complaint must be personal.They cannot be anonymous and must be well motivated and supported by evidence, because you cannot remove someone from their job based on a presumption.”
It will be an instance above the SCJN
According to the reform, the Court will also be able to refer the matter to the competent public prosecutor in the event of a possible commission of crimes and request impeachment of the persons judging the case.
The sanctions issued may include: the warning, suspension, financial sanction, dismissal and disqualification of judges with the exception of the ministers of the SCJN and electoral magistrates.
According to the analysis “The risks of the constitutional reform of the Judicial Branch of the Federation”, prepared by Mexico United Against Crime, far from fulfilling the objective of improving the discipline and administrative management of the judicial branch, its operation is made even more complex. Rather than ensuring that the members of the judiciary act in accordance with the law and ethical principles, the Court would review the decisions of the SCJN and other judges, expanding its disciplinary mandate to include reviewing the content of sentences.
In this regard, the co-coordinator of the Justice program of Mexico Evalúa, Susana Camacho, called attention to the fact that the Court will be above the Supreme Court of Justice of the Nation.
In an interview, the specialist said that this is an instance that can change the resolution of any judge, magistrate or minister, which makes it a super-powerful body, which will undermine the independence of the judges.
Given this situation, what will surely happen is that there will be greater possibilities of co-optation of judges by de facto powers, both political and economic, he warned.
For his part, Miguel Mejía Sánchez, professor at UNAM’s FES Aragón, called attention to the fact that considering this new entity as a single-instance court, granting it the power to investigate, sanction and dismiss members of the judiciary, without considering any recourse that, If applicable, it may revoke the sanctioning resolution, thereby granting excessive power to said institution, and may leave those likely responsible for the illegal conduct of which they are accused without defense.
In turn, Edgar Corzo Sosa, professor at the UNAM Faculty of Law, mentioned that at different points of the reform that have to do with the powers of the new court, It is said that it must act as determined by the laws, but those laws have not yet been issued.
If the constitutional reform was not approved along with the laws, what will happen when the legislator wants to issue the laws that regulate the constitutional content, “It will be a blank check and it can include things that were not known when the constitutional reform was approved.”
The explanatory statement of the initiative presented by President López Obrador and already approved by the Congress of the Union and at least 17 state congresses, He points out that the creation of the Judicial Disciplinary Court responds to the low rate of complaints, prosecution, trials and sanctions against judicial officials, despite the “widespread knowledge of inappropriate behavior””.
Then, when it was ruled on in the Chamber of Deputies, before being presented to the plenary, it was added that the actions of the Judicial Council in disciplinary matters have been questionable because acts of corruption persist, as well as “unjustified delays and backlogs in the attention and conduct of trials.”
In this regard, during the National Dialogues for Judicial Reform, the current federal deputy, Ricardo Monreal of Morena, stated that the Federal Judicial Council has received increasing complaints for administrative violations, harassment and abuse of judges, which almost always result in minor administrative responsibilities.
“As a result of the above, 106 public servants have been sanctioned, but, if this figure is already low, it is seen marred by the fact that 0.6% correspond to economic sanctions, 99.4% to administrative sanctions and more than 30% were just warnings”.
Disciplinary procedures should respect the guarantee of independence
An analysis carried out by the SCJN’s Centre for Constitutional Studies (CEC) stresses that judicial disciplinary procedures must respect the guarantee of independence and impartiality.
He even emphasizes that the Mexican Constitution and the American Convention on Human Rights recognize that Any person facing a procedure that could affect his or her personal sphere has the right to be judged by an independent and impartial tribunal.
These procedural guarantees They extend to the disciplinary field and contain specific standards for judicial officials, he added.
The Inter-American Court has established that all disciplinary proceedings instituted against judges must be resolved in accordance with standards of conduct established in fair procedures, which ensure the competence, objectivity and impartiality of the disciplinary body.
Furthermore, the CEC analysis highlights that the intervention of other public powers in the appointment of the disciplinary court authorities violates the guarantee of independence and impartiality.
He explains that the reform grants the Executive and the Legislative the power to select the people who will compete in the polls to integrate the Court, violating international and inter-American standards that oblige the Mexican State to guarantee judicial officials the right to have disciplinary proceedings processed by an independent and impartial body.
He points out that one element that may lead to the presumption of a lack of impartiality in disciplinary proceedings is precisely the dependence on other branches of public power and the conditions for exercising the position.
Both the Inter-American Commission and the United Nations Rapporteurship for the Independence of Judges and Lawyers They have stated that independence is compromised when there is interference from other public powers in the appointments of persons who make up the judicial disciplinary bodies.
By the time this text is published, the promulgation of the Reform would be within hours of occurring or will have already occurred, as announced by the president.Andrés Manuel López Obrador and the new Judicial Disciplinary Court will already exist, at least in the law.
