By Verónica Méndez and Úrsula Garzón*
On September 15, 2024, the Decree reforming the Constitution of the Judiciary was published in the Official Gazette of the Federation . This reform has generated concern among those who advocate for environmental protection in Mexico. One of the most controversial points is the relaxation of the processes for electing judges and magistrates, as it raises doubts about the suitability and independence of those who will be in charge of administering justice. In this article, we will analyze the possible implications of these changes for access to environmental and climate justice in the country.
A solid legal framework, but with challenges in its implementation
Mexico's environmental legal framework, comprised of national and international regulations, is robust and offers diverse tools to protect, guarantee, and promote the right to a healthy environment. However, this framework must be accompanied by effective resources to ensure its proper implementation. International instruments, such asAdvisory Opinion OC-23/17 of the Inter-American Court of Human Rights and the Escazú Agreement , underscore the importance of having judicial systems that guarantee the effective enforcement of environmental laws.
Environmental and climate justice: Complexities that require adaptation
Access to justice in environmental and climate matters has particularities and complexities that require the adaptation of ordinary procedural frameworks. The Supreme Court of Justice of the Nation (SCJN) has indicated that “ the justiciability of the human right to the environment cannot be developed from ‘classical’ or ‘traditional’ models of administering justice, since in most cases these prove insufficient and unsuitable for this purpose .”
This is because “ the particularities of the causality of environmental damage are difficult to integrate within the usual framework of legal causality, since the elements that produce environmental harm are diffuse and slow, adding to and accumulating with each other .” Furthermore, in these types of cases, “ there is a situation of inequality (of political, technical, and economic power) between the responsible authority ” and the person who resorts to the courts to protect their right to a healthy environment.
Adding to this complexity is the fact that access to environmental justice not only implies the possibility of accessing efficient procedures, but also entails access to information and participation in decision-making, and includes all authorities, who, when exercising their powers, from regulation to inspection and surveillance, must do so accurately and in strict adherence to the law and environmental principles.
Despite all this, access to environmental and climate justice in Mexico already faces multiple challenges: complex procedures, institutional incapacity, a lack of specialized knowledge, limited economic and technical resources, and a context of insecurity and violence in the country . These factors make it impossible for communities and individuals to protect their rights against political and economic interests that frequently prioritize economic development over human and environmental rights.
A reform that falls short of the necessary changes in the justice system
The recent judicial reform was approved without guaranteeing democratic participation or addressing the real needs for transformation of the justice system . Among the most worrying points are:
- Elimination of the judicial career requirement
The judicial reform establishes that the election of ministers, magistrates and judges will be free, direct and secret by the citizens (article 96 of the Constitution), leaving out the requirement of a judicial career.
Before the reform, the Judicial Career Law of the Federal Judiciary required, for these positions, the ability to interpret and reason legally from concrete cases and with an intersectional perspective, in addition to having knowledge of the organization and, where applicable, management of the judicial office (article 9).
To be appointed as a magistrate or judge, it was necessary to pass competitive examinations, which consisted of several stages: answering questionnaires, attending full-time training courses at the Judicial School, taking oral exams, and resolving practical cases or participating in simulated hearings. Furthermore, criteria based on experience and knowledge were used to fill the positions. For example, only District Judges and Secretaries of Study and Accounts of the Supreme Court could apply to become magistrates.
With the judicial reform of 2024, the process of electing and appointing these positions no longer evaluates the experience and skills necessary to issue resolutions with the highest professional quality.
- Lack of preparation and specialization
The judicial reform no longer requires extensive experience or specialization to administer justice, establishing that to be a minister, only five years of professional practice are needed (Article 95, Section III, of the Constitution), and only three years to be a magistrate or judge (Article 97, Section II of the Constitution). Furthermore, only a three-page essay justifying the reasons for their candidacy and five letters of reference from neighbors, colleagues, or other individuals who support their suitability for the position are required (Section II of the Constitution).
Moreover, although the General Law of Electoral Institutions and Procedures (LGIPE) establishes that the Committees — which will assess the suitability of those who apply — “may take into account the curriculum profile of the candidates” (article 500, numeral 6), the truth is that it is presented as a possibility and not as an obligation within the process.
As previously stated, the guarantee of the right to a healthy environment is closely linked to the right of access to justice. Therefore, as established by the Escazú Agreement, it is necessary to have specialized professionals and competent bodies that effectively apply environmental principles. This is essential for the judiciary to reach just decisions.
Disregarding the judicial career path and not requiring the consideration of resumes, while establishing letters of recommendation from people who lack knowledge about the administration of justice, is concerning, especially when it comes to environmental and climate matters.
- Threats to judicial independence
Various international organizations and academic experts have indicated that the judicial reform may affect the independence of the judicial system in Mexico due to: 1) the replacement of the Federal Judiciary Council — the body that has, among other powers, the administration, oversight, discipline and judicial career of the Federal Judiciary — by the Judicial Administration Body and the Judicial Disciplinary Tribunal; and b) the process of electing judges.
Regarding the Judicial Administration Body, there is concern that some of its members will be nominated by other branches of government (in this case, the Senate and the Executive). Furthermore, those who comprise it may not be legal experts (Article 100 of the Constitution), and its decisions will be final and unappealable, meaning no recourse will be available against them.
Regarding the new Judicial Disciplinary Tribunal, it will be composed of five members elected directly by popular vote, and its decisions will be final. The concern lies in the fact that professional competence and experience are not essential requirements for holding these positions, and that the selection process could become politicized. Thus, the Inter-American Commission on Human Rights (IACHR) , for example, warned that the process for forming this body and the lack of due process guarantees in the disciplinary system could compromise the independence of the judiciary.
Finally, the Special Rapporteur on the independence of judges and lawyers expressed her concern regarding the new process for selecting judges and magistrates. She noted that, based on international standards, “ appointment processes must meet certain minimum requirements to guarantee an independent judiciary. Judges must be chosen based on their training and qualifications, as well as their integrity and suitability, ” and that while the selection of judges may in some cases be considered to have greater democratic legitimacy, “ this procedure may lead to the politicization of judicial appointments, such that political considerations prevail over the objective criteria established in international and regional standards (merit, qualifications, integrity, sense of independence and impartiality) . ”
Greater risks and obstacles to protecting the right to a healthy environment
In a context where institutional frameworks and judicial action are key to accelerating climate action and addressing violations of the right to a healthy environment, specialized professionals and impartial, competent judicial bodies are essential. The lack of guarantees for judicial independence and the repeal of standards for selecting candidates for judicial positions jeopardize the judicial system's ability to protect the right to a healthy environment.
Although we don't yet know who will be responsible for administering environmental justice, it's clear that the reform will intensify the existing challenges and obstacles to ensuring access to environmental and climate justice. At the time of writing, it was uncertain how the judicial reform would guarantee such access.
* Verónica Méndez is a lawyer with the Climate Program of the Inter-American Association for Environmental Defense (AIDA), and Úrsula Garzón is the Defense Manager of the Mexican Center for Environmental Law (CEMDA)
By Verónica Méndez and Úrsula Garzón*
On September 15, 2024, the Decree reforming the Constitution of the Judiciary was published in the Official Gazette of the Federation . This reform has generated concern among those who advocate for environmental protection in Mexico. One of the most controversial points is the relaxation of the processes for electing judges and magistrates, as it raises doubts about the suitability and independence of those who will be in charge of administering justice. In this article, we will analyze the possible implications of these changes for access to environmental and climate justice in the country.
A solid legal framework, but with challenges in its implementation
Mexico's environmental legal framework, comprised of national and international regulations, is robust and offers diverse tools to protect, guarantee, and promote the right to a healthy environment. However, this framework must be accompanied by effective resources to ensure its proper implementation. International instruments, such asAdvisory Opinion OC-23/17 of the Inter-American Court of Human Rights and the Escazú Agreement , underscore the importance of having judicial systems that guarantee the effective enforcement of environmental laws.
Environmental and climate justice: Complexities that require adaptation
Access to justice in environmental and climate matters has particularities and complexities that require the adaptation of ordinary procedural frameworks. The Supreme Court of Justice of the Nation (SCJN) has indicated that “ the justiciability of the human right to the environment cannot be developed from ‘classical’ or ‘traditional’ models of administering justice, since in most cases these prove insufficient and unsuitable for this purpose .”
This is because “ the particularities of the causality of environmental damage are difficult to integrate within the usual framework of legal causality, since the elements that produce environmental harm are diffuse and slow, adding to and accumulating with each other .” Furthermore, in these types of cases, “ there is a situation of inequality (of political, technical, and economic power) between the responsible authority ” and the person who resorts to the courts to protect their right to a healthy environment.
Adding to this complexity is the fact that access to environmental justice not only implies the possibility of accessing efficient procedures, but also entails access to information and participation in decision-making, and includes all authorities, who, when exercising their powers, from regulation to inspection and surveillance, must do so accurately and in strict adherence to the law and environmental principles.
Despite all this, access to environmental and climate justice in Mexico already faces multiple challenges: complex procedures, institutional incapacity, a lack of specialized knowledge, limited economic and technical resources, and a context of insecurity and violence in the country . These factors make it impossible for communities and individuals to protect their rights against political and economic interests that frequently prioritize economic development over human and environmental rights.
A reform that falls short of the necessary changes in the justice system
The recent judicial reform was approved without guaranteeing democratic participation or addressing the real needs for transformation of the justice system . Among the most worrying points are:
- Elimination of the judicial career requirement
The judicial reform establishes that the election of ministers, magistrates and judges will be free, direct and secret by the citizens (article 96 of the Constitution), leaving out the requirement of a judicial career.
Before the reform, the Judicial Career Law of the Federal Judiciary required, for these positions, the ability to interpret and reason legally from concrete cases and with an intersectional perspective, in addition to having knowledge of the organization and, where applicable, management of the judicial office (article 9).
To be appointed as a magistrate or judge, it was necessary to pass competitive examinations, which consisted of several stages: answering questionnaires, attending full-time training courses at the Judicial School, taking oral exams, and resolving practical cases or participating in simulated hearings. Furthermore, criteria based on experience and knowledge were used to fill the positions. For example, only District Judges and Secretaries of Study and Accounts of the Supreme Court could apply to become magistrates.
With the judicial reform of 2024, the process of electing and appointing these positions no longer evaluates the experience and skills necessary to issue resolutions with the highest professional quality.
- Lack of preparation and specialization
The judicial reform no longer requires extensive experience or specialization to administer justice, establishing that to be a minister, only five years of professional practice are needed (Article 95, Section III, of the Constitution), and only three years to be a magistrate or judge (Article 97, Section II of the Constitution). Furthermore, only a three-page essay justifying the reasons for their candidacy and five letters of reference from neighbors, colleagues, or other individuals who support their suitability for the position are required (Section II of the Constitution).
Moreover, although the General Law of Electoral Institutions and Procedures (LGIPE) establishes that the Committees — which will assess the suitability of those who apply — “may take into account the curriculum profile of the candidates” (article 500, numeral 6), the truth is that it is presented as a possibility and not as an obligation within the process.
As previously stated, the guarantee of the right to a healthy environment is closely linked to the right of access to justice. Therefore, as established by the Escazú Agreement, it is necessary to have specialized professionals and competent bodies that effectively apply environmental principles. This is essential for the judiciary to reach just decisions.
Disregarding the judicial career path and not requiring the consideration of resumes, while establishing letters of recommendation from people who lack knowledge about the administration of justice, is concerning, especially when it comes to environmental and climate matters.
- Threats to judicial independence
Various international organizations and academic experts have indicated that the judicial reform may affect the independence of the judicial system in Mexico due to: 1) the replacement of the Federal Judiciary Council — the body that has, among other powers, the administration, oversight, discipline and judicial career of the Federal Judiciary — by the Judicial Administration Body and the Judicial Disciplinary Tribunal; and b) the process of electing judges.
Regarding the Judicial Administration Body, there is concern that some of its members will be nominated by other branches of government (in this case, the Senate and the Executive). Furthermore, those who comprise it may not be legal experts (Article 100 of the Constitution), and its decisions will be final and unappealable, meaning no recourse will be available against them.
Regarding the new Judicial Disciplinary Tribunal, it will be composed of five members elected directly by popular vote, and its decisions will be final. The concern lies in the fact that professional competence and experience are not essential requirements for holding these positions, and that the selection process could become politicized. Thus, the Inter-American Commission on Human Rights (IACHR) , for example, warned that the process for forming this body and the lack of due process guarantees in the disciplinary system could compromise the independence of the judiciary.
Finally, the Special Rapporteur on the independence of judges and lawyers expressed her concern regarding the new process for selecting judges and magistrates. She noted that, based on international standards, “ appointment processes must meet certain minimum requirements to guarantee an independent judiciary. Judges must be chosen based on their training and qualifications, as well as their integrity and suitability, ” and that while the selection of judges may in some cases be considered to have greater democratic legitimacy, “ this procedure may lead to the politicization of judicial appointments, such that political considerations prevail over the objective criteria established in international and regional standards (merit, qualifications, integrity, sense of independence and impartiality) . ”
Greater risks and obstacles to protecting the right to a healthy environment
In a context where institutional frameworks and judicial action are key to accelerating climate action and addressing violations of the right to a healthy environment, specialized professionals and impartial, competent judicial bodies are essential. The lack of guarantees for judicial independence and the repeal of standards for selecting candidates for judicial positions jeopardize the judicial system's ability to protect the right to a healthy environment.
Although we don't yet know who will be responsible for administering environmental justice, it's clear that the reform will intensify the existing challenges and obstacles to ensuring access to environmental and climate justice. At the time of writing, it was uncertain how the judicial reform would guarantee such access.
* Verónica Méndez is a lawyer with the Climate Program of the Inter-American Association for Environmental Defense (AIDA), and Úrsula Garzón is the Defense Manager of the Mexican Center for Environmental Law (CEMDA)