Do President Nieto’s Supreme Court nominees put judicial autonomy at risk?
President Peña Nieto’s two recent Supreme Court appointees cast doubts over the political will to maintain the independence of Mexico’s highest court.
The independence of the judiciary is of paramount importance for modern democracies with strong rule of law, which aids the creation of a solid legal system, vigilant against the influence of politicians or private interests.
In Mexico, this independence is severely questioned. Conflicts of interest abound, corruption scandals are an everyday occurrence, and irregularities on criminal investigations are often highlighted. In a country where over 93% of crimes go unpunished, the government must work to strengthen the ailing justice system.
Mexico’s activist Supreme Court
On November 30th, Olga Sánchez Cordero and Juan Silva Meza concluded their terms as ministers of the Supreme Court of Justice, a title they had held since 1995. During their terms, the Supreme Court has strengthened its reputation as Mexico’s highest judicial entity thanks to its widely hailed rulings on controversial cases involving forced disappearances, and more recently same-sex marriage and marijuana use.
These rulings have not always reflected public opinion but rather a strong sense of compliance and commitment to the rule of law. The Supreme Court recently allowed recreational use of marijuana to four plaintiffs even though 77% of Mexicans oppose marijuana legalization. Similarly, it ruled in favour of same-sex marriage despite 48% of Mexicans disapproving of such unions.
These rulings illustrate the necessity to maintain an independent Supreme Court that is not accountable to politicians seeking popularity, but that focuses on strengthening the judiciary through a strict review of Mexican law for the cases that reach it. Moreover, these rulings are widely appreciated in a country with an extremely deficient justice system.
Mexico’s judicial deficit
Mexico’s National Institute for Statistics and Geography estimates that 93.8% of crimes go unreported or are not investigated. Murders and disappearances have risen so dramatically since Felipe Calderon’s “War on Drugs” that government offers no reliable figures on either, although estimates point to over 85,000 murders. In certain parts of the country, the rule of law is non-existent due to the deep infiltration of criminal gangs into local police forces. Mexicans’ trust in the authorities and the justice system is therefore dismal.
Even cases that have turned into media storms, such as the disappearance of 43 students in the south-western state of Guerrero, or the abuse of power by federal forces towards suspected criminals in Tlatlaya remain unsolved more than a year after both events.
The lack of proper investigations, as well as political will to bring those accountable to justice has sparked international criticism. The Inter-American Commission on Human Rights recently dismissed the investigation and official version of events of the disappearance of 43 students in Guerrero, claiming the presence of “grave irregularities”. Moreover, a Special Rapporteur of the UN decried the “generalized” use of torture in the country.
Despite this internationally recognized crisis on human rights, neither of Peña Nieto’s Supreme Court appointees specializes in these topics.
Questions arise about suitability of Supreme Court nominees
According to Mexican law, the President must submit three candidates for each vacant seat in the Court. In order to maintain the current gender composition of the organism, Peña Nieto proposed three female and three male candidates. The female candidates include three magistrates with experience on penal law at the state level, although their competence for the Supreme Court has been questioned by the national media.
Meanwhile, the male candidates include higher profile figures, such as the current Attorney General of the State of Mexico, a current federal magistrate and former federal tax attorney, and the Director General of Legal Affairs at the Álvaro CastroNational System for Public Security.
Every appointee will attend a hearing in the Senate before the final decision is made. Critics point that the process of selection has been fast-paced and that a more thorough review of each candidate is needed. Overall, the process could last less than a month. By comparison, in the United States, the nomination and ratification process for Sonia Sotomayor and Elena Kagan lasted well over two months.
Moreover, Peña Nieto’s male candidates have been criticized for their questionable record. Current Attorney General of the State of Mexico Alejandro Gómez oversaw the massacre by federal forces in Tlatlaya, while ’s record at the National System for Public Safety lacks the kinds of achievements on justice procurement that many expect.
These all-too-familiar candidates bring memories of the controversial designation of Eduardo Medina Mora as Minister of the Supreme Court earlier this year. Several civil groups and NGO’s expressed their outrage at the decision, given his dubious record as Attorney General which includes the mishandling of human rights abuse cases and an investigation into a nursery home fire in which 49 infants died, which ultimately resulted in impunity.
This time, civil society groups have expressed their concern over the lack of information and background on the candidates, and demand a longer period to appoint the next ministers. Many fear that the candidates are too close to the ruling party and administration. The process is expected to conclude by mid-December.
However, party composition in the Senate could eventually dictate the outcome. Given the number of seats held by the ruling PRI and allied parties, only a handful of votes are required to achieve the 75 votes required for appointee ratification.
The independence of the Supreme Court remains one of the most laudable achievements of Mexico’s transition to democracy. However, Peña Nieto’s proposals for ministers have inevitably raised alarms among civil society groups as to the president’s will to keep strengthening this organ’s autonomy and power.
Evident incompetence, lack of background information and dubious professional records seem to be a constant among the candidates. If Mexico’s highest judicial organ is to maintain its reputation and independence, it will have to work from within. At least under this president’s term.