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Federal court workers in Mexico City protest against a proposal that would remove and replace all judges in the country in popular elections, Monday, Aug. 26, 2024.
© 2024 Eduardo Verdugo/AP Photo
(Washington, DC) – Mexican legislators who will take office on August 31, 2024, should reject a series of proposed constitutional changes that would undermine judicial independence, government accountability, and the right to privacy, Human Rights Watch said today. The proposals could also lead to an increase in military abuses and arbitrary detentions.
The proposals are contained in four bills that legislators are expected to discuss when Congress returns to session on September 1. The bills would expand automatic pretrial detention, replace the current judicial appointment process with popular elections, eliminate constitutional restrictions barring the military from carrying out civilian law enforcement, and abolish the country’s independent privacy and government transparency watchdog.
“These dangerous proposals would undermine judicial independence, give unprecedented power over civilians to the military, and eliminate safeguards intended to protect human rights,” said Juanita Goebertus, Americas director at Human Rights Watch. “Given Mexico’s long history of serious human rights violations and official cover ups, legislators should be taking steps to strengthen human rights protections, not weaken them.”
The four bills are part of a series of 18 proposed constitutional reforms that outgoing President Andrés Manuel López Obrador sent to Congress in February. President-elect Claudia Sheinbaum, whose party controls Congress, has endorsed many of the proposals and urged legislators to approve them before she takes office on October 1.
One of the bills, which legislators said will be among the first to be put to a vote, would significantly change the way federal judges are chosen and supervised. Currently, federal judges are selected based on their performance in an open, competitive evaluation process run by the Federal Judicial Training School and are eligible to apply for lifetime tenure after six years in office.
Under the proposed changes, judicial tenure would be eliminated and judges would be elected every nine years, in local elections in each judicial district, from lists of candidates selected by the president, Congress, and the Supreme Court. The approximately 1,650 currently serving federal judges would be forced to resign and would be replaced in elections in 2025 and 2027. The bill would require all state legislatures to make similar changes to the judicial appointment processes of their state court systems within 180 days, which would affect about 5,000 state judges and magistrates.
The proposal would also reduce the size of the Supreme Court, shorten the terms of its members, and replace the current members in a special election in 2025. It would also allow for judges to hear alleged organized crime cases anonymously, without defendants knowing the identity of the judge who will decide their case.
These proposals would seriously undermine judicial independence and contravene international human rights standards intended to ensure everyone receives a fair hearing before the courts, Human Rights Watch said.
Under international standards, judges should have guaranteed tenure and be protected from political influence to ensure that they can make decisions based solely on the facts of the case and in accordance with the law. The UN special rapporteur for the independence of judges and lawyers has highlighted the importance of adopting “non-political appointment processes, linked strictly to the quality and professional merit” of judicial candidates.
In July, the special rapporteur expressed concern, in a letter to President López Obrador, that the proposed changes could “increase the risk that judicial candidates try to please voters or their campaign sponsors to increase their chances of re-election, instead of taking decisions based exclusively on judicial norms and standards.”
The UN Human Rights Committee and the Inter-American Court of Human Rights have said that trials carried out with “faceless judges” are contrary to the right to a fair trial since defendants are unable to evaluate whether the judge hearing their case may have a conflict of interest.
Another bill under consideration would eliminate the National Institute for Transparency, Access to Information, and Data Protection, the independent agency that enforces transparency and data protection rules in Mexico. The agency has the authority to require the government to comply with freedom of information requests and to require any organization, public or private, to allow people to access their personal data, such as medical records. It can issue fines to enforce its rulings and take legal action against the government.
Under the proposal, each branch of the government would be responsible for ensuring its own compliance with freedom of information laws. Between October 2022 and September 2023, the agency received and reviewed nearly 20,000 complaints from people who said government agencies had refused to comply with access to information rules.
Eliminating the independent transparency agency and allowing the government to enforce its own compliance with freedom of information laws would undermine Mexicans’ rights to privacy and access to public information, Human Rights Watch said.
The proposed constitutional changes would also further expand automatic pretrial detention, requiring judges to order the detention of anyone accused of extortion, drug dealing, tax fraud, smuggling, or crimes related to fentanyl production and trafficking without reviewing the circumstances of the case to determine whether the detention is justified. Mexico’s Constitution already requires judges to order pretrial detention for over a dozen categories of crimes.
Requiring judges to order pretrial detention without reviewing the circumstances of each case contravenes international human rights law and is not an effective way of addressing crime, Human Rights Watch said.
Under international law, pretrial detention should only be used in exceptional cases, based on an individualized determination that it is necessary for purposes such as preventing flight, interference with evidence, or the recurrence of crime. The Inter-American Court of Human Rights has ruled that Mexico’s use of mandatory pretrial detention violates human rights standards and ordered it to reform its laws and Constitution to eliminate the practice. About 88,000 people were being held in pretrial detention at the close of 2022, approximately 40 percent of the total prison population.
Additionally, a proposed bill would eliminate the constitutional prohibition preventing the military from exercising non-military functions outside wartime, permanently transfer control of the National Guard, the main federal law enforcement agency, to the defense ministry, and officially give the president the authority to indefinitely deploy the military domestically at their discretion.
The military has been informally deployed for law enforcement since 2006 with almost no civilian oversight, during which time it has committed widespread human rights violations, including executions, enforced disappearances, and torture, that are rarely investigated, with neither the violators held to account nor the victims granted justice. President López Obrador has vastly expanded the role of the military, giving the Army and Navy control over hundreds of traditionally civilian government tasks, without any corresponding expansion of civilian oversight and accountability.
“Mexico urgently needs more effective security and justice institutions,” Goebertus said. “Sadly, these proposed bills are likely to do the exact opposite.”
