I. Introduction

{1} In Mexico, not unlike most other Latin American nations, the President wields great power as a result of the legacy of past military dictators and the conquistadors.¹ On June 20, 1995, the following incident occurred which will be very helpful in understanding the imbalance of governmental powers that currently exists in Mexico.

{2} After missing for a day, 60 year old Abraham Polo Uscanga, a long-time magistrate of Mexico City's Superior Justice Tribunal who was preparing for retirement, was found in his son's office shot in the back of the neck. Although police discovered a .38 caliber revolver next to his body, forensic tests showed that he had not fired the weapon himself.² This murder graphically illustrates the current state of the Mexican Judiciary.

{3} In March of 1995, after years of corruption and mismanagement, the publicly run metropolitan bus company, called Ruta 100, was declared bankrupt by the Mayor of Mexico City. All of its workers were dismissed in an attempt to break the power of the leftist Urban Transport Workers' Union, SUTAUR, that had dominated the company for the past decade.³ The army was drafted to run the bus company until new drivers were hired.⁴ The company had grown to consume eight percent of the entire Mexico City budget, with 28,000 employees, while being used by only six percent of the city's residents that used public transportation in 1994.⁵ The top leaders of the Ruta 100 were arrested and charged with fraud and embezzlement on a corruption complaint that was filed against them four years earlier.⁶

{4} When this high-profile case came before Judge Polo with a request for an arrest warrant for the union leaders, he denied it because he believed the evidence to be insufficient to support an indictment against them.⁷ Chief Justice Saturnino Aguero, upon learning of the ruling, ordered Judge Polo to produce the warrant immediately or else "abide by the consequences." Judge Polo would not succumb to the pressure exerted upon him and was removed from the case.⁸ Another judge issued the ruling and the union leaders were jailed.⁹

{5} Judge Polo immediately resigned and publicly denounced the corruption in the judicial system, stating that he had come under similar prodding from the Chief Justice in the past.¹⁰ He also stated that corruption and political intimidation were working against, and inhibiting the independence of, the Mexican Judiciary.¹¹ In addition, he said that "The problem is the interference of the executive power in the (decisions of) the judiciary."¹²

{6} In the days following his resignation, the judge was threatened, assaulted, kidnapped, and tortured by men that wanted to know whether he had links to radical left-wing groups in Mexico.¹³ After these incidents, Judge Polo stated that he feared for his life.¹⁴

{7} Such is the current state of the Mexican judiciary. It is in critical condition and is in need of drastic rehabilitation. This paper will describe the Mexican judiciary, its difficulties, and how it might be put in to its proper place in the constitutional separation of powers scheme. Recent reforms and their contribution toward achieving a healthier judiciary will then be analyzed with an outlook to the future and further steps that must be taken. Parts A and B of Section II will examine the ideal of a separation of powers and what form the Mexican Constitution dictates should be in place in Mexico. Parts C and D of Section II will investigate the realities of the Mexican Courts in regard to corruption from within and influences from outside the judiciary as well as probe the disrespect that exists for the rule of law in Mexico. Section III will outline Mexican President Ernesto Zedillo's judicial reforms of December 1994. Section IV will present major criticisms of the reforms and explore further steps that need to be taken to truly improve the judiciary and allow it to function as the constitution requires.

II. The Ideal of Separation of Powers

A. Separation of Powers Generally

{8} The doctrine of separation of powers has been known since Aristotle identified three "elements:" the general assembly to deliberate political matters, the body of magistrates that have a strict jurisdiction, and the judiciary.¹⁵ Later inquiries into this doctrine were attempted by Montesquieu,¹⁶ Locke,¹⁷ and Rousseau.¹⁸

{9} The presently prevailing concept of separation of powers is that which Montesquieu postulated in 1748 with his book Spirit of the Laws.¹⁹ There, Montesquieu outlined three types of power much like Aristotle: Legislative, Executive, and Judicial, and added that each of these should remain separate. The legislative power was for the head of the state to enact provisional or permanent laws. The executive power gave war or peace-making abilities. The judicial power gave the ability to decide private controversies or punish crimes.²⁰

{10} Within Montesquieu's conception was the argument that there exists no freedom or trust where these powers are not kept separate and instead are vested in the same person or branch of government.²¹ The combination of the executive and judicial powers would allow a person to become a tyrant.²² The separation was argued to be a necessary shield from governmental oppression and discrimination -- interdependence without hegemony domination.²³ Power was seen to be, by nature, encroaching.²⁴

{11} As a result of struggles that were taking place in Western Europe between legislative bodies and monarchs, the separation of powers doctrine began finding its way into the laws of different nations who were looking to end such clashes.²⁵ The doctrine of separation of powers was very influential in shaping the French Constitution of 1791 and was expressly adopted in Article 16 of the Declaration of Man and Citizen.²⁶ This article provided that "A society where . . . the separation of powers is not established, has no constitution at all."²⁷ In Title III of the French Constitution, the governmental powers were set out in three branches of government: the National Assembly, the King, and the judges.²⁸ In its distribution, this Constitution kept the powers wholly independent from one another, a scheme that went beyond Montesquieu's original conception.

{12} In America, the Federalist Papers advanced a separation of powers structure for the newly independent United States, including a judiciary insulated from the other two branches that exist in a politically pressured environment. This insulation aids in guaranteeing impartial adjudication²⁹ and a "sober second thought."³⁰ This support of the judiciary came in response to lessons learned through the long struggle to free British judges from the dominion of the King.³¹

{13} The American Constitution was drafted to include these concepts and created three branches that check and balance one another.³² Article III insulates the judiciary from potential coercion by the executive and legislature, gives federal judges life tenure and a guaranteed salary,³³ and has been interpreted to make the judiciary responsible for the "ultimate interpretation of the Constitution".³⁴ The U.S. Supreme Court "has not hesitated to enforce the [separation-of-powers] doctrine . . . . where one branch has impaired or sought to assume a power central to another branch."³⁵

{14} By the American structure, the President "acts in subordination to judicial authority" and "cannot tell the courts how to decide a case."³⁶ "The judiciary must operate independently and free from the influence and direction of the executive or legislative branches."³⁷

{15} The reason that judiciaries need to be insulated and independent is to keep them free from influence. Such potential influence emanates from three main sources. First and foremost, there must be independence from other government institutions, such as the executive branch, which may have an interest in having a ruling in a particular case be decided in favor of a particular litigant. This type of independence can be critical, for example, in cases that involve human rights violations by the government.³⁸ It is a basic democratic ideal that the judiciary intervene, at the request of one of the litigants, to mediate between individuals. Acts of governmental coercion and influence from elsewhere in the government can seriously impede this important judicial function.

{16} A second source of potential influence from which the judiciary must be insulated is from other judges. In Mexico, this was an especially threatening source of influence due to the appointment scheme that was in place through which current judges made the appointments of new judges.³⁹ Candidates were chosen by who would, once on the bench, render judgments according to the will of others to whom they owe political debts. This influence and its potential consequences were made shockingly clear with the case of murdered Mexican Judge Abraham Polo Uscanga who defied "orders" given to him by the Chief Justice to render a judgment for a particular litigant.⁴⁰

{17} A third source of potential influence is from the litigants before the court. This influence is significant because it involves the offering of bribes to the judge in return for a judgment in their favor. In Mexico, mordidas, or bites,⁴¹ are traditional bribes that are "required" for almost any governmental service, but are especially common within the judiciary.⁴²

{18} The independent judiciary has been described as the keystone that holds the other members of the governmental arch. With the keystone, the arch has extraordinary strength. Without it, the arch collapses.⁴³

{19} Independent judiciaries can also be extremely important to the development of institutional structures by prosecuting humans rights violators, regardless of whether the perpetrator is a military or police official.⁴⁴ Courts that stand up for and redress such serious violations by the government upon the citizens of the nation earn respect and legitimacy from the people.⁴⁵

{20} In the words of Daniel Webster: "No Conviction is deeper in my mind, than that the maintenance of the judicial power is essential and indispensable to the very being of this government. The Constitution without it would be no constitution; the government, no government."⁴⁶

{21} Today, the separation of powers principle is adopted as the basic tenet of many modern governments. In general, justice is considered to be closely linked to human liberty; thus, the judiciary holds a position of great importance.47

B. Separation of Powers in the Mexican Constitution

{22} Mexico, like many other nations, has been influenced by the U.S. Constitution of 1789. It has incorporated many of the U.S. Constitution's components into its own current Constitution,⁴⁸ which was enacted in 1917 and is basically a revision of their Constitution of 1857.⁴⁹ In addition to the major American influences, there were also minor influences from the Spanish Constitution of 1812, and the French Constitutions of the Revolutionary Period and of 1848.⁵⁰

{23} The Mexican version of separation of powers is very similar to that expounded by the framers of the U.S. Constitution⁵¹ and in line with the writings of Locke and Montesquieu. The Mexican Constitution states that "The Supreme Power of the Federation is divided, for its exercise, into Legislative, Executive, and Judicial Branches. Two or more of these powers shall never be united in one single person or corporation . . .."⁵² It does not entail a rigid division of powers between the branches as the French Constitution of 1791 but, rather, it allows for cooperation by the different branches. The Mexican President may veto bills passed by both houses of Congress as outlined in Article 72⁵³, just like the U.S. President is able to. The concept of checks and balances is also evident within the Constitution, for example, by the requirement that the Senate ratify Presidentially-appointed Supreme Court Justice nominees.⁵⁴

{24} The Mexican Constitution also grants, in some instances, powers to one branch that would seem to be more appropriate for another branch of government to hold.⁵⁵ Article 74 (V) gives the Chamber of Deputies (which is the Mexican equivalent to a lower house of congress like the U.S. House of Representatives) the ability to impeach public officials by indicting them.⁵⁶ In addition, Article 75 (VII) allows the Senate to constitute itself as a grand jury to take cognizance in political trials of crimes or omissions of public officials and those that go against fundamental public interests.⁵⁷ Moreover, the judiciary is granted some powers that are rather administrative in nature, such as establishing its own rules of discipline⁵⁸ and submitting its annual budget.⁵⁹ Overall, though the concept of separation of powers is contained in the Mexican Constitution, these examples make it appear that it does not strictly follow the principle.

{25} The Mexican President does, however, have more power than the U.S. President. One obvious difference in the presidential powers of the two nations is that, through Article 71, the Mexican President may submit legislative proposals to Congress to be referred to congressional committees for action, without any assistance from Congress necessary at all.⁶⁰

{26} Another difference between the presidential powers of the two nations is one of a long-running tradition within the PRI: the current, outgoing Mexican President, who is constitutionally limited to only one six-year term by Article 83,⁶¹ hand picks his party's candidate to run in the upcoming election. This move is known officially as "the unveiling," and known on the streets as el dedazo, "the big finger."⁶² This candidate selection is significant due to the PRI's extremely long era of power, whereby naming the candidate has been basically equivalent to naming the next President of Mexico.⁶³

{27} Overall, there is a clear separation of powers concept incorporated into the Mexican Constitution, even though the U.S. and Mexican Constitutions are slightly different in some respects.

C. Empirically, Mexico Does Not Have a Separation of Powers

{28} In the days when monarchs ruled Mexico absolutely, the king would appoint persons to administer justice in his name, since the function was not the state's, it was his.⁶⁴ The Latin American tradition of caudillismo, a heavy-handed autocratic leadership inherited from the region's colonizers, was exploited by civilians after the former-colonies gained their independence.⁶⁵ A period of authoritarian rule of dictators and military juntas followed, the transition from which into a modern constitutional democracy is still far from complete.⁶⁶ Latin American presidencies tend to be strong while other sources of countervailing power are weak.⁶⁷ These presidential powers have serious effects on the balance of power in Mexico's three branch democracy and an unambiguously independent judicial system has yet to be established.⁶⁸

{29} The Mexican Executive Branch, and more specifically the President, is granted many powers which have translated into wide influence on the other branches. In addition, the executive branch is allocated an tremendous 95% of the total national budget.⁶⁹ At his disposal is a strong and highly centralized bureaucracy.⁷⁰ The President's powers are largely informal and nearly absolute and he rules with a mano dura, an iron hand,⁷¹ making some describe it as an "imperial" presidency.⁷²

{30} Many presidential appointments personify the flair with which they have run their administrations. An example of such an appointment was former President Salinas' appointment of Fernando Gutierrez Barrios as Interior Minister, who is infamous for his role in the 1968 massacre of hundreds of student protesters.⁷³ Salinas also appointed Patrocincio Gonzalez Garrido, who was the governor of Chiapas that helped drive it into insurgency by jailing indigenous leaders and sympathetic priests and teachers.⁷⁴

{31} Past Mexican Presidents have seen their office as a personification of national glory.⁷⁵ Carlos Salinas attempted to take this glory a step further and treated the presidency as a stepping stone to international glory in his now-unrealized dream of becoming the Director General of the World Trade Organization.⁷⁶

{32} Playing a large role in the domination by the President is the fact that the Partido Revolucionario Institucional (PRI) has been the ruling party since 1929 and has assisted in keeping the presidential powers strong by monopolizing the presidency for this entire period.⁷⁷ The PRI won every presidential, senatorial, and gubernatorial election for half a century until July of 1988 when it lost a few elections.⁷⁸ The party is virtually indistinguishable from the government.⁷⁹ There is no truly free and honest press,⁸⁰ and the PRI dominates television election coverage.⁸¹ The party egregiously outspends opponents⁸² and electoral fraud has surrounded their victories for many years.⁸³

{33} It is generally conceded that in just about every Latin American nation, including Mexico, the executive branch of government is the most powerful.⁸⁴ In addition, most Latin American nations do not have the stability of political institutions, nor the judicial inheritance, that other nations such as those in North America possess.⁸⁵ Over the years, many Latin American nations have struggled to create a judiciary that would be a truly unfettered branch of their government, unfortunately, with no real discernible progress.⁸⁶

{34} The judiciary rarely overturns the President who nearly independently appointed them to their position at some point in the past.⁸⁷ In addition, the judiciary has given great deference to the President by incorporating a large political questions nonjusticiability doctrine whereby the courts refuse to hear a case because, the justices believe, they will be deciding an issue that is, essentially, political in nature and should be made by the President.⁸⁸

{36} La Suprema Corte de Justicia de la Naci-n (the Supreme Court of Mexico), in particular, could be described as an extension of the executive branch that serves to carry out the will of the President.⁸⁹ In the past, PRI Secretary General Irma Cue de Duarte, as well as several former Attorney Generals, were appointed as Supreme Court Justices,⁹⁰ illustrating just how political the court is. Because of the political-favor nature of judicial appointments, the number of justices had steadily increased over time to 26.⁹¹

{37} Former Mexican Presidents such as Carlos Salinas had made very few changes to the judiciary and focused their political energies on macroeconomic management.⁹² The judiciary has also traditionally been a tool of the President, whereby Presidential "friends" are never prosecuted even though their illegal business dealings are well known, while those who alienate the President are prosecuted.⁹³

{38} Former Mexican President Carlos Salinas, for example, made full utilization of his vast presidential powers in carrying out his sweeping economic changes and trampled over the judiciary in the process.⁹⁴ In order for similar wide-ranging economic reforms to have taken place in other democracies, such as the that of the United States, it would very likely have taken many more years to push through than it was possible for Mr. Salinas to do in his single six-year term.

D. The Disrespect for the Rule of Law in Mexico

{39} Mexicans have held little faith in the independence and integrity of the judiciary and in attaining justice therein.⁹⁵ It is widely believed to be thoroughly corrupt⁹⁶ and is generally hated by Mexicans.⁹⁷ "The justice system is completely discredited," says Santiago Creel Miranda, a prominent Mexican lawyer.⁹⁸ It is widely perceived as incapable of offering a timely, impartial forum for the resolution of disputes and, as Michael Hershman, head of the Fairfax Group, an international security firm in Falls Church, Virginia, "Just saying 'justice system' in Mexico is a contradiction in terms."⁹⁹ Its decision-making has been described as arbitrary.¹⁰⁰ It has been described as being virtually impossible for the average citizen to gain access to the Mexican legal system.¹⁰¹ Moreover, the growing influence of organized crime and Mexican drug cartels over the past few years has played a big role in the corruption of the judiciary in recent years, with many drug traffickers avoiding conviction and, in some instances, even prosecution altogether.¹⁰² In addition, a few current Mexican Judges are even former politicians that had been removed due to political scandal,¹⁰³ although Article 95 of the Mexican Constitution requires that Supreme Court Justices enjoy a "good reputation".¹⁰⁴

{40} The total funding for the entire federal judiciary is a meager .1% of the total national budget,¹⁰⁵ making it a small, weak branch of government that is very dependent on the political process¹⁰⁶ and incapable of completing its tasks properly.¹⁰⁷ There are many poorly trained judges, as Mexico has no mandatory bar exam or background inquiry checks.¹⁰⁸ When a Mexican law student finishes her courses, she is required to write a thesis and is orally examined by five professors of her law school who question the student and judge the merits of the thesis. If the student passes, an oath is taken at the end of the examination, by which the actual practicing of law in Mexico is authorized.¹⁰⁹ Once the school's paperwork is validated and the diploma is registered, a cŽdula is issued which allows the graduated student to practice law anywhere in the Republic.¹¹⁰

{41} Legal costs are high and most of the Mexican population turn to other methods for settling disputes.¹¹¹ Attorneys even charge potential clients by the hour for first consultations.¹¹² Pro bono legal work is very rare.¹¹³ One of the main reasons why legal costs are so high in Mexico is because lawsuits take a very long time.¹¹⁴ Once a Mexican attorney takes on a client, it will almost certainly be the beginning of a long and frustrating relationship that will require years to settle, even for the simplest of disputes.¹¹⁵

{42} The courts are plagued by lengthy and cumbersome procedures¹¹⁶ where delay tactics, called chicanas, are commonly used without sanction, and approximately 95% of all proceedings are appealed at least once.¹¹⁷ Just about everything that can be appealed is appealed, even if it is obvious that the appeal will be rejected.¹¹⁸ Moreover, there are huge backlogs as the court dockets are full.¹¹⁹ Even simple hearings are scheduled to take place months in the future.¹²⁰ Judges are overworked to the point that some Mexico City judges may issue more than 100 decisions on a single day.¹²¹

{43} More than being necessary for a modern democracy, an independent and properly functioning judiciary is an essential condition for a functioning market economy. Such an economy requires predictable and consistent enforcement of contracts and property rights,¹²² as well as intellectual property rights,¹²³ in a timely, accessible, and impartial manner with predictable standards.¹²⁴ Judicial reforms are necessary before important foreign investors, who are very adverse to political shocks, will truly be comfortable investing money in a nation and will not worry about honest settlement of disputes.¹²⁵ In the wake of economic reforms, such as the North American Free Trade Agreement, and the increase in international trade that will follow, the need for an efficient judiciary becomes increasingly important for Mexico.

{44} The corrupt judiciary is a potentially devastating obstacle to doing business in Mexico.¹²⁶ This is particularly true for small businesses in Mexico that are without the money and the political connections that larger companies enjoy, but which are a main reservoir of entrepreneurial talent, a big source of jobs, and account for about 80% of Mexico's total industrial production.¹²⁷ In addition, it is small businesses that rely on the court system the most because they find it more difficult to gain access to other methods of resolving disputes, such as mediation or arbitration.¹²⁸

{45} A stronger judiciary would help fight crime and drug trafficking by improving the ability to enforce the law.¹²⁹ Influence that is purchased through bribes easily allows persons committing crimes to be acquitted or never actually prosecuted at all.¹³⁰

{46} Justice breeds stability. An improved judiciary will bring justice to the Mexican people and decrease the possibility of uprisings like that and which occurred in 1993 in Chiapas which brought some tensions in the nation to the surface.¹³¹ The rebellion has been described as a possible microcosm of what is possible throughout the entire nation if nothing is done to address some of the problems that Mexicans are facing.¹³² In fact, one of the Zapatista Rebel's main demands was for judicial reform.¹³³

{47} The economic crisis that hit Mexico in December of 1994 was due, in part, to the adverse reaction that investors have toward turmoil in a nation.¹³⁴ The steadily increasing feeling of lawlessness along with the peso devaluation of December of 1994 lead to the worst economic crisis in Mexico's history.¹³⁵ The weak judiciary played a role in this crisis by allowing the lawlessness and corruption to continue unfettered until it reached a breaking point and shook the stability of the nation.¹³⁶

{48} A judiciary that stands up for the rights of the people as well as works against those that undermine the good of the nation for their own benefit will earn the trust and respect of the people. The court system might then be seen as a legitimate forum to resolve their disputes. This translates to a respect for government that is essential to any attempt to increase the rule of law. Ultimately, a byproduct of all of the above is to increased stability in the nation. A nation must truly be stable in order to develop itself and lift itself into the realm of a modern democracy of and by the people of Mexico.

{49} In speeches by current President Zedillo regarding the state of the Mexican Judiciary, he has focused on the need to strengthen the rule of law and make it more effective so the Mexican people will have more confidence in it.¹³⁷ This concept of a "rule of law" is most closely related to the Principio de Legalidad, or the principle of legality.¹³⁸ This term basically means that all judicial actions and any administrative authorities must conform to preexisting rules of law.¹³⁹ It is the control by the judiciary that provides a measure for the effectiveness of the principle of legality.¹⁴⁰ The strength of the judiciary, therefore, is of the utmost importance and ultimately is a gauge to determine whether administrative authorities are actually subject to the law.¹⁴¹

{50} Like many Latin American nations, Mexico currently has serious deficiencies in its rule of law. The significance and legitimacy of a constitutional system based on the rule of law has not yet been internalized.¹⁴² There has been resistance to the competition of the powers of the government and to the achievements necessary to maintain an equitably functioning democracy.¹⁴³ Instead, there is a belief in the overpowering importance of one's status and connections that has crippled a transition to a modern democracy.¹⁴⁴ The rule of law needs to be consolidated into a basic requirement of government practice and daily life. There have clearly been problems with the corruption of politicians and other government officials,¹⁴⁵ but disrespect for the rule of law is also evident in many other aspects of daily life, from the black market to tax evasion,¹⁴⁶ and even down to the most basic rules regarding the operating of motor vehicles.147

iii. Mexican President Ernesto Zedillo's Judicial Reforms of December 1994

{51} Elected in 1994, Mexican President Ernesto Zedillo Ponce de Leon has made reform of the judicial system an early focus of his administration, fulfilling a campaign promise in which he often repeated that he wanted to work toward making Mexico a "country of laws",¹⁴⁸ "to invigorate democracy",¹⁴⁹ and have a justice system that works.¹⁵⁰ In his first major act as President, only five days after being sworn in, President Zedillo sent to the Mexican Congress a package of constitutional reforms that would overhaul the justice system, "I have decided that the power of the presidency cannot and should not be an omnipotent power, and omniscient power, nor an omnipresent power."Zedillo declared.¹⁵¹

{52} On December 17, 1994, the Senate approved the judicial reforms with a 108-0 vote.¹⁵² The twenty remaining votes were abstentions of protest by Senators of the leftist Partido de la Revolucion Democratica (PRD) who claimed that the reforms did not go far enough in modernizing Mexico's court system and eliminating corruption therefrom.¹⁵³

{53} The reforms are supported by 84% of Mexicans¹⁵⁴ and have been well received in legal circles.¹⁵⁵ They are an attempt to combat some serious problems that President Zedillo pointed out in his inaugural speech, such as widespread crime, frequent violations of individual and human rights, and corruption within the judicial system.¹⁵⁶ Zedillo's reforms have been described as his "trying to write the 'Federalist Papers' of Mexico,"¹⁵⁷ because of his attempt to strengthen the checks and balances and improve the separation of powers in Mexico. He describes the reforms as "a first step toward a better balance of powers . . . (and) an impartial, prompt, and accessible justice" for all Mexicans.¹⁵⁸ Zedillo will relinquish some of the Presidential powers to insulate a broader judiciary from interference from the executive branch and to give the Supreme Court more powers of constitutional control over the actions of the other branches of government.¹⁵⁹

{54} The reforms were, in part, an attempt to quell the feeling of lawlessness that had overcome the nation because of the rebellion by the Zapatista National Liberation Army in the southern state of Chiapas,¹⁶⁰ the extraordinary rise in power and influence of the major Mexican drug cartels,¹⁶¹ and the rise in crime, including the number of kidnappings.¹⁶² Three very high-profile murders also contributed to this appearance of lawlessness which include that of Roman Catholic Archbishop Juan Jesus Posadas Ocampo of Guadalajara in May of 1993, which has been tied to Mexican drug cartels.¹⁶³ PRI leader Jose Francisco Ruiz Massieu was then murdered in March of 1994, which has been surrounded by controversy and alleged cover-ups that implicate former-President Carlos Salinas' brother Raul as well as Massieu's own brother, Mario.¹⁶⁴ Finally, PRI presidential candidate Luis Donaldo Colosio was murdered in March of 1994, for whom Zedillo was campaign manager and who he later replaced as PRI's presidential candidate.¹⁶⁵

{55} The reforms forced the current 26 Supreme Court Justices into retirement. The Supreme Court justices will now number a more compact 11, not 26 as in the past.¹⁶⁶ The high number of justices made for more frequent replacements, which could lead to the reversal of past judgments¹⁶⁷ and decreased the overall stability of the court even further.¹⁶⁸ These provisions had an immediate effect on Mexicans' perception of "justice" by Zedillo's ouster of justices that were connected with the past judiciary in which they held little faith.

{56} The requirements for Supreme Court justices will now be more rigorous, with a minimum requirement of ten years of legal practice as compared to the five year minimum in the past.¹⁶⁹ This is an attempt to create a more select group of justices who are practitioners, not politicians, and who will be lawyers by education and profession.

"Political" appointments to the Supreme Court will now be eliminated. Persons that have held certain high-level government offices such as cabinet ministers, governors, deputies, congressmen and senators, administrative department heads, and other political appointees are no longer eligible for appointment if they have held such a position within the previous two years.¹⁷⁰ The attempt here is to make the Supreme Court less of a sanctuary for unqualified, politically influential appointees.¹⁷¹

{57} The reforms will establish the Consejo de la Judicatura Federal (the Federal Judicial Council), made up of members of all three branches of government, to handle all administrative tasks of the Supreme Court, including the territorial jurisdictions of lower courts and, most importantly, the appointment of circuit magistrates and district court judges.¹⁷² A "chain of corruption" was made possible in the past by the judicial appointments made by the Supreme Court because political influences by the PRI as well as the President played a role in the appointments, rather than excellence and professional aptitudes.¹⁷³

{58} Constitutional precedents will now be made when laws are declared unconstitutional. In the past, no precedent was set. The decision only applied to the parties before the court and the law continued to apply elsewhere.¹⁷⁴ This provision will also increase stability and respect for the judiciary.

{59} Supreme Court justice and Attorney General nominees now must be made in a group of three nominees, one of which must undergo a U.S.-style Senate interrogation of their legal qualifications and moral character in open hearings and must be ratified by two-thirds of the Senate. This requirement strengthens the powers of the legislature.¹⁷⁵ In the past, a simple majority of the Senate, without any sort of hearing, was all that was required to appoint a Supreme Court justice. This will decrease the President's "political" appointments and allow the separation of powers to operate more effectively by granting the Senate a check upon the President's appointment powers.

{60} A provision will now make it possible for individuals to file complaints against lazy, corrupt, or inefficient prosecutors.¹⁷⁶ Corruption pervaded both sides of the bench, with prosecutors being accused of taking bribes to cease or relax prosecutions.¹⁷⁷ This clearly will increase, at the very least, the implication of "justice" within the court system.

{61} The reforms prompted the widely read, front-page Mexican newspaper columnist, Francisco Cardenas Cruz, to write that "The Supreme Court of Justice will finally stop being a refuge for politicians and public functionaries displaced by disgrace."178

IV. The 1994 Reforms are Insufficient and Further Steps Need to Be Taken

{62} Critics have pointed out that the practical impact of the reforms for the average Mexican is very low.¹⁷⁹ Lorenzo Meyer, a professor at the College of Mexico explains that "For the average Mexican the Supreme Court is as distant as Mars. They don't know it exists."¹⁸⁰ Professor Meyer adds "It was quite easy to remove the Supreme Court. They have no power."¹⁸¹ Lorenia Trueba Almada, a young lawyer for the Department of Human Rights of the Archdiocese of Mexico, says that real change will have to happen first in the courtrooms where every day judges now too often take political interests into consideration. Unfortunately, according to Almada, "Very few people (in the judiciary) will take the risk to do their job."¹⁸²

{63} The bulk of the criticisms of the reforms stem from one general issue: What the reforms did not address. There are many parts in a properly functioning judiciary, and although some may be more crucial than others, they work together and, therefore, play an important role in obtaining some form of justice. One of the more important elements that was not addressed in the reforms are the rules of court procedure, which clearly need to be reformed so that delay tactics do not have such a powerful effect on the outcome of a case.¹⁸³ The police were also not addressed by the reforms, yet they are widely seen as corrupt; torture is very common in obtaining confessions that will later be used to achieve convictions.¹⁸⁴ Even President Zedillo has stated that "We have no police forces to trust in Mexico."¹⁸⁵ To his credit, Zedillo has suggested publicly, however, that the amount of corruption could be lessened by increasing the salary of public servants, as well as ensuring they are better qualified.¹⁸⁶ The current minimum amount of schooling required to become a policeman is only nine years.¹⁸⁷

{64} In addition, there still remains the problem of Mexico's virtual one-party system, dominated since 1929 by the PRI. It is lead, in a great part, by the "dinosaurs," the old guard, hard-line, anti-reform members that have substantial influence within the party.¹⁸⁸ The party is too closely associated with state institutions, is riddled with corruption, and its procedures are undemocratic, such as the president's hand-picking of his successor.¹⁸⁹ A multi-party system is essential to a modern democracy and this may pose the greatest challenge of all -- reforming the PRI from within. There is the definite possibility that a split in the PRI might occur some time soon by some of the more corrupt segments of the PRI that feel betrayed.¹⁹⁰ Yet, without a multi-party system, as the PRI's presidential power loosens, local PRI party bosses fill the power vacuum, some influenced by the hard-line "dinosaurs" and some by drug traffickers.¹⁹¹

{65} In response to such criticisms of President Zedillo's own party, he has appointed an opposition party member, Antonio Lozano Gracia, as procurador, or Attorney General of the Republic.¹⁹² Lozano, a former Partido de Accion Nacional (PAN) congressional deputy (the equivalent of a member of the House of Representatives), is the first opposition party member to hold a cabinet-level post since the PRI came to power.¹⁹³ In addition, President Zedillo has said that the selection of PRI candidates "would not be my responsibility,"¹⁹⁴ hinting toward an end of the hand-picked presidential successor.¹⁹⁵ He has also been holding regular meetings with members of opposition parties, something practically unheard of in years past.¹⁹⁶ At the same time, opposition party candidates have won some important gubernatorial races in important states such as Jalisco, Guanajuato, Baja California, and Chihuahua,¹⁹⁷ and the number of opposition party congressmen in the Congress now totals 37 percent.¹⁹⁸ Moreover, the congressional government-oversight committee, which will help in separating the PRI from the government, is now headed by a member of the PAN.¹⁹⁹ Thus, although wide changes are taking place, more are needed.

{66} Another point of contention is that the reforms concentrate on the Supreme Court, while many problems, including corruption, infect other parts of the justice system. Corruption is rampant in the lower courts, where bribery and politically influenced decisions occur much more discreetly and out of any type of public spotlight.²⁰⁰ However, because the Supreme Court can remand cases back to, or reverse the decision of, the lower courts if they are not adjudicated according to the correct law, it is appropriate that reforms begin at the top of the judicial system. A reformed Supreme Court could act as a check on all of the lower courts and possibly deter some of the illegal activity and corruption that takes place. The Supreme Court is also a good place on which to focus initial reforms because of its ability, through the authority of decisions that they will render, to affect the actions of so many people, including prosecutors and police officers, that play a role in the justice system.²⁰¹

{67} Many writers have pointed out that this is not the first wave of "judicial reform" that has been attempted in recent years.²⁰² But, these reforms are less political and more substantive, says Gabriel Casteneda, a lawyer who helped draft the initiative.²⁰³ They are "more transcendental because they touch the heart of the balance of powers."²⁰⁴

{68} While the critics argue that the reforms do not go far enough in correcting the ailing judiciary, proponents see them like a "blueprint for a new building," as noted by Ulises Beltran, presidential technical adviser on judicial matters.²⁰⁵ "This is a foundation."²⁰⁶ "Obviously, systems aren't changed from one day to the next."²⁰⁷ "This will be a gradual process."²⁰⁸ In the words of presidential adviser German Fernandez, "We are going to build anew the system of justice."²⁰⁹ President Zedillo concedes that the reforms, though ambitious, have not yet gone far enough, but has pleaded for more time.²¹⁰ While it is very true that there is a need for further reforms if there is going to be true change, the judicial reforms of 1994 are a very good "foundation" (as Zedillo has called them²¹¹) for further measures.

V. Conclusion

{69} The lack of an independent judiciary, along with the side effects of one-party rule and fraudulent elections, underlies Mexico's corrupt system.²¹² The Mexican Constitution outlines a separation of powers much like that which exists in the United States but the branches of government, in reality, are far from separated. The Mexican Constitution requires a rather efficient system of checks and balances through which such a strong executive and president should not exist. This Constitution has a chance, but steps need to be taken to ensure that it takes its proper place in the workings of government and is much more closely conformed with.

{70} Separation of powers in Mexico had largely been ignored until 1994 with Ernesto Zedillo's judicial reforms. They start a more equal relationship for the presidency with the other branches of government and establishes more respect, autonomy, and shared responsibility between them by tilting the scales of governmental power away from the executive branch where it is now too concentrated.

{71} The reforms are clearly a step in the right direction toward depoliticization and strengthening of the judiciary. They address definite problems that exist today that are making for such low respect and trust in the entire court system. Insofar as these reforms go, it appears that they will help the judiciary, but there are other very big problems that remain and still need to be addressed, such as the widespread corruption in the courts as well as in the police forces -- both of which are directly related to criminal convictions.

{72} The reforms represent a brave and bold plan by Ernesto Zedillo in an attempt to attack the problems of what is clearly the significant and maybe the most corrupt branch of government. His doing so will also have the effect of decreasing the powers of himself as he holds the presidency. This sacrificing of power is highly unusual in the recent history of Mexican Presidents and obviously was highly needed.

{73} As President Zedillo himself stated four months after the judicial reforms were signed into law, "There still exists a deep lack of public confidence in the justice system. There is a wide gap between laws and their application."²¹³ The reforms will be virtually meaningless if Mexicans cannot believe in their rule of law. Zedillo is clearly headed down the right path, but will need to build upon these reforms to affect other officials, such as the police and politicians, in attempting to reach what is clearly the ultimate goal: make a judiciary that the Mexican people will depend on and have confidence in as a legitimate institution to deliver untainted justice.