In Mexico, a new system for electing Supreme Court justices, magistrates and judges through popular vote was enacted a few days ago, in a controversial reform of the judiciary that only has one parallel in the world: Bolivia.
The South American country adopted in its 2009 Constitution an unprecedented method for awarding the positions of the country’s high courts through universal elections.
Only a few countries at the local level – the United States, Switzerland and Japan – have elections for judges.
Since the new system was adopted in Bolivia, citizens They have gone to the polls twice (in 2011 and 2017) to vote for candidates aspiring to occupy positions on the Supreme Court of Justice, the Plurinational Constitutional Court, the Agro-Environmental Court and the Council of the Judiciary.
But these types of elections have not had popular support: in 2011, 60% of those who voted left their vote blank or spoiled it, a figure that reached 65% in 2017. According to some analysts, this is because citizens do not know the hundreds of candidates who appear on the ballots.
“In the act of voting, people express their intention to make clear that they do not agree with the method. Because they do not know the candidates nor do they believe that it is the best way to shape the courts,” he explains. Eduardo Rodriguez Veltzewho was president of Bolivia (2005-2006) and president of the country’s Supreme Court of Justice (2004-2005).
For his part, the jurist Farit Rojasprofessor and researcher at the Universidad Mayor de San Andrés, maintains that the popular election of judges has been a positive change in the “conquest of rights”, but agrees that the method of selecting candidates – by a list voted for by a majority in Congress – does not have the majority support of citizens.
“In Bolivia you are obliged to vote, and if you don’t, there are sanctions. And it is under this logic that people go to vote. But when they don’t know who to vote for, they vote blank or spoiled,” explains Rojas.
The Bolivian method is very similar to the one just approved by Mexico.
“Let the people choose them”
The President Mexican Andres Manuel Lopez Obrador He championed his proposal for reform of the Judicial Branch as his top priority in his last year of government. He assured that the intention of the reform is democratize a power that is described as “alien” to the people.
“We believe that if judges are elected, as is done in the US and other countries, The judiciary can be reformed. It can be cleaned, purified, and this will help us all. So it is not something to harm the people, to affect the public life of the country. It is not about concentrating power. An independent body is being proposed. [de control] which will not depend on the Executive,” López Obrador stated last June.
“First, let them be elected by the people, because it is much better for them to be elected by the people than for them to be elected by the top. It is democratic. People know very well what is convenient and what is not convenient… And what is not convenient? That there is corruption.”
Similar arguments were made in the Constituent Assembly that formulated a new Magna Carta in Bolivia in 2009.
“The administration of Justice was always seen as a colonial heritagewhich served to strip rights, territories and other indigenous populations. There was always a great distrust in the institutions of Justice,” explains Farit Rojas. “They were clear that the population should participate. What they were not clear about was how to choose the best candidates.”
Over the past 15 years, two have been the biggest problems in the Bolivian experience: the selection of candidates and the voting process.
The question of preselection
The Constitution of Bolivia includes a six-year renewal of senior officials in the Judiciary (the 2023 election was postponed amid a political and legal dispute between the three branches of government).
The vote starts from a preselection carried out by the Legislative Assembly through a candidate suitability check that is approved by a two-thirds majority.
Such a majority has been had in recent years by ruling partyMovement Towards Socialism (MAS), which has meant that this political force has had the power to approve the list.
Rodríguez Veltzé points out that this has been one of the first questionable points. “They approved the lists for the popular election and did not include the most capable or well-known citizens.”
“On the contrary, people who had some prestige or who could eventually be a good candidate, preferred not to stand in order to avoid political or partisan manipulation,” he continued.
Rojas agrees that this preselection method has generated rejection: “The population tends to reject candidates who are clearly government candidates. The population is not stupid and knows how to identify candidates who are sympathetic to the MAS and does not choose them.”
In MexicoThe approved reform gives a direct pass to the election to the jurists who are currently part of the Judicial Branch. But it also opens the door to the registration of other profiles with less experience, since it is enough to have completed the Law degree with a grade of 8.5 out of 10 and enjoy a “good reputation” to apply for judgeship. In the case of circuit magistrates, three years of experience is enough.
In defense of the reform promoted by AMLO, the legislators of the majority bloc affirmed that the requirements are those that were already in the law and that they are only adding more options and rules of gender parity.
But the opposition has criticised the fact that it is Congress, which has been dominated by the ruling party since 2018, that selects the candidates and that the lists are only subject to a popular vote, as is the case in Bolivia.
Rodríguez Veltzé believes that, in general, this system does not promote the advancement of lawyers in a professional and independent judicial careerHe points out that in Bolivia, the fact that mandates are six-year terms, with no possibility of re-election, limits such professionalization. In Mexico, only district judges and magistrates may be re-elected, but not Supreme Court justices. All will be in office for 9 years.
“I think the system is counterproductive. It does not encourage the best lawyers to participate in a meritocratic process,” says Rodríguez Veltzé.
Rojas, however, finds It is positive that the traditionally closed judicial sphere has opened up to society..
In this regard, the Bolivian constituents stressed that the new system allowed for the first time the participation of marginalized sectors, such as indigenous peoples, in addition to prioritizing gender parity.
The complicated vote
Candidates who pass through the filter of the Bolivian Legislative Assembly advance to the election phase, but They can’t campaignIt is the electoral body that is responsible for informing citizens about who they are, their resume and their merits.
“When the ballots were presented for voting, They were very large sheets with more than 100 small photographs.with names of citizens, and the average voter was very unfamiliar with the quality of the candidates,” explains Rodríguez Veltzé.
“This is an objective expression of the citizens’ refusal to take on a responsibility that should really be based on another form of election,” he added.
In the case of Bolivia, citizens vote for 26 positions, while in Mexico the new law puts to a vote nine Supreme Court justices (eliminating two seats) and more than 1,600 circuit magistrates and district judges. To gradually fill the positions, there will be elections from 2025 to 2036.
As in Bolivia, campaigns financed with public or private money, as well as the purchase of advertising, will also be prohibited in Mexico. However, candidates are allowed to use state spaces in the media and participate in forums and debates.
Proponents of the law say that a massive vote will be feasible as it is scheduled in a tiered voting system over the next decade.
But critics warned that it will be very difficult for citizens not only to know the profiles of the candidates, but also to choose between many names on the ballots, as occurred in Bolivia in the last two elections.
Lawmakers from Mexico’s governing bloc argued during the reform debates that under the new system, the ballot will not be politicized since will not mention political partiesThey also pointed out that the three powers will have the right to submit proposals for candidates, regardless of their political or ideological affinity.
“Do not be afraid of the people, do not be afraid of democracy,” said deputy Hamlet García Almaguer, from the Morena party, in one of the debates.
More influence from organized crime?
Critics of the Judicial Reform in Mexico warned that the popular vote could open the door for illicit powers, such as drug cartels, to influence the election of judges. finance them or mobilize votes in their favor.
This phenomenon has not been observed in Bolivia, analysts say. The influence has been seen from the political sector. “When the vote is in the hands of the population, it is more difficult for the cartels to corrupt the entire population when voting,” explains Rojas.
“I believe, like many lawyers, that legitimacy is not given by how you are appointed, but by your results, by how you exercise your position,” he added.
Proponents of reform in Mexico argue that there are mechanisms to ensure that this does not happen, such as technical committees that will be carried out rigorous assessments of candidate suitability before being considered by Congress.
They also point out that the reform provides for stronger control mechanisms than those currently in place and that when citizens suspect that a judge is involved with organised crime, their votes will be the instrument to stop him.
And they assure that with the creation of the Disciplinary Court The performance of judges will be effectively monitored, unlike what happens with the current Federal Judicial Council, which has a low record of investigations against magistrates (423 sanctions and 22 dismissals since 2000).
Has justice improved in Bolivia?
The truth is that, after two elections, the judiciary in Bolivia still enjoys low popularity among citizens.
A survey released last year – when the third elections of magistrates were to have been held – by the Fund for the Promotion and Protection of Human Rights Defenders showed that 85% of respondents across the country thought that justice was “not very reliable or not at all reliable”.
Rojas argues that, although there are problems, the popular voting system has been a positive step towards improving the system. It put justice in the public eye, reduced the high salaries of ministers and opened up this power to jurists outside the traditional circle.
“The administration of justice has been made public, something that did not happen before. The reforms were conceived in terms of laws, and it was thought that this was the problem. But now it is argued that the problem is the institutions and the people,” he argues.
“In Bolivia, the administration of justice is slow and expensive, but it is not always corrupt. There are good judges, good courts and good practices.”
For Rodríguez Veltzé, on the other hand, election through popular vote is not the right answer to having good judges. In addition, he believes that Other key elements of justice need to be reformed for its correct operation.
“It is not only the judges who are poorly chosen, but the entire power body that has not contributed to giving justice its place. There is no good budget, adequate legislation, public policies or types of crime,” he explains.
The ruling bloc in Mexico has promised to reform other aspects of justice, such as the prosecutor’s offices. But for Rodríguez Veltzé, Justice “deserves to be outside of political ups and downs”.
“The issue is so serious that it deserves more debate, more reflection. But in any case, experience will show the results. I am very sorry that they have not taken into account what happened in my country and that it has not worked,” he reflects.
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