PERSPECTIVES ON THE JUDICIAL REFORM IN MEXICO
José Ramón COSSÍO DÍAZ^*

I am going to talk about Judicial Reform from the perspective of a broader unfinished legal reform in Mexico.

The idea of the unfinished state of the judicial reform is an essential part of the subject itself; in other words, I think judicial reform cannot ever be considered completed. Why? Through the justice system different kinds of social conflicts are solved; in a legal order of roman family origins these conflicts are reflected with some precision in statutes. Therefore, in order that the organs of this system are able to deal with the conflicts before them, it is necessary that statutes are constantly renewed. Thus, the appearance of new statutes or changes to the existing ones are predictable: establishing new appointment procedures, making new subjects the object of judicial adjudication, the simplification and reduction of procedures, creating new procedural possibilities for remedies (like class action), establishing accountability controls over judges, among others. If the justice system remains unchanged, a gap between social problems and remedies will be generated. This will, sooner or later, lead to a crisis, that will star with the breakdown of the legitimacy of the justice system.

If this initial and brief diagnosis is correct, we have to ask ourselves, within the current context of our country, what should be understood by judicial reform? And furthermore, what reasons lead us to assert that the reform remains unfinished? Analyzing the words used in the title of this panel, we can consider that if something is not finished, it is still in process, and that it began somewhere and has a foreseeable end. Nevertheless, as we have said, the judicial reform is a continuum. Hence, it is necessary t o consider the current reform as a stage, a fragment of a whole that mutates constantly.

In order to adequately asses where are we in the judicial reform, we have to identify the different stages and then determine the features of the current one. Only then can we identify what is still pending to conclude the stage. This is an endeavor that is clearly beyond the limits of this presentation, so we will refer our analysis only to the federal level of the justice system and then include the local level in the fourth and last stage. To understand this distinction, we have to remember that in the original text of the 1917 Constitution the reference to the federal justice system was limited only to the federal judicial power: Supreme Court of Justice, Circuit and Unitary Courts, and district judges, in an organic structure similar to the American federal justice system.

The process of Mexican federal judicial reform can be then divided into three stages; the characterization and order of these stages will be focused on the broad rationalization of the justice system, more than on the diversity of particular changes. The first stage can be identified with the creation of the administrative courts: initially the establishment of the juntas de conciliación y arbitraje, followed by the Tribunal Fiscal de la Federación, and years later the Tribunal Federal de Conciliación y Arbitraje. The leading idea of this stage was to create, outside the Federal Judicial Power and within the sphere of the Federal Public Administration, judicial-administrative organs empowered to solve, in the aforementioned order, federal conflicts between workers and their employers, taxpayers and the revenue service, and bureaucrats and the State as an employer.^**

The second stage can be identified with the docket overflow problem that afflicted the Federal Judicial Power just a few years after the 1917 Constitution. This stage temporarily overlapped with the first and it was characterized by the increase of the Supreme Court membership from 11 to 26 justices, the establishment of the circuit courts, and the substantial modification of competence allocation, thus leaving the Supreme Court with certain processes and delegating the rest to the newly created circuit courts. The large number of pending resolutions was due to the power of the Supreme Court to review practically every resolution made by federal courts and tribunals (mentioned in the first stage), as well as those of the states and the federal district, and regarding a whole range of legal subjects (civil, criminal, commerce, tax, labor, etc.). Far from modifying the organic and empowerment structure to make it more rational and efficient, this model created new organs to manage an ever increasing number of cases and modified the competence allocation to prevent the Supreme Court from accumulating large number of unsolved cases (at the beginning of the fifties the Court had thirty thousand unsolved cases).

The third stage, linked temporarily and structurally with the conclusion of the second, is characterized first and foremost, with the transformation of the Supreme Court from the supreme tribunal within the Federal Judicial Power, to an organ empowered almost exclusively to solve problems related to the enforcement and interpretation of the Federal Constitution. This objective required several modifications; these include the empowerment of the circuit courts as final reviewers of subjects not directly related with the Constitution, and the reallocation of the administrative powers of the Supreme Court to a federal judicial council: the Consejo de la Judicatura Federal. The final modification was the creation of new constitutional protection procedures to directly contest the constitutionality of general norms and actions of federal, state or municipal authorities by other authorities at the same level of government (controversias constitucionales) or congressional minorities contesting the constitutionality of the decisions taken by the majority (acciones de inconstitucionalidad).

From my point of view, this last stage is concluded. There have been enough amendments since 1951 to give our Supreme Court the character of a constitutional court, a unique combination between the American and European models. We could further develop this stage, with certain modifications that will serve to strengthen the model we have chosen. These include the reinforcement of the Judicial Council and the creation of a federal court of appeals, following in some respect the idea of Chief Justice Burger in the seventies.

It is in this context, the conclusion and consolidation of the final stage of reform, where we have to understand the unfinished state of the judicial reform. Practically everybody believes that the justice system is going through a bad period, and there is a general agreement that reforms are necessary. However, there has been no agreement about what has to be reformed and in which way. On the one hand, we are at a point where the previous stages are exhausted; but on the other hand, we are unable to imagine the changes that are needed to solve our most pressing problems.

This paradox has various roots. I will only discuss some of these. Firstly, the diagnosis may be wrong. If we do not correctly identify the malady we cannot devise a remedy. Secondly, even if we know the problems, we may not know the solutions. If this second possibility is correct, it seems to me that we have to be aware that we have been insisting that the solutions can be achieved with partial and minor modifications rather than deep structural changes. A third possibility could be that we might be trying to devise a large number of partial solutions and the diversity and potential contradiction between these is generating more problems rather than solutions.

Considering these alternatives, it seems to me that we have a combination of factors. On the one hand, we have incorrectly diagnosed the problems that afflict us. For example, we assume that we must eliminate the power of review of practically all the decisions made by the judicial organs of the country because of the amount of cases accumulated, and not because the distortions this generates in the federal system. On the other hand, continuing with the same example, thinking that the complete elimination of this form of judicial review would go against the structure of the Mexican legal order and that the most convenient solution is then to introduce only minor adjustments, and thus knowingly not solving the general problem.

The only way out of this stagnating situation, is to provoke a national debate, discussing the problems of the judicial system and developing the most adequate solutions, hence producing a new stage of judicial reform. In order for the discussions to have an ending point, we must avoid arguments for the best abstract technical solution, guiding the discussions along functional criteria concentrating on each of the integral parts of the system. We have to answer the question: what are the conceived endpoints we intend to achieve with each of the particular reforms? And integrate them as part of a "master plan" that will be developed over a period of time through a combination of statutory amendments and execution of policies.

In August 2003, the Supreme Court started a national consultation process, directed towards different sectors of Mexican society to expound their own diagnosis of the problems and possible solutions for the Mexican justice system. By December 2005 we had received 10,000 (ten thousand) proposals from judges, barristers, public servants, academics and Non Governmental Organizations. All these proposals have now been classified, and several groups of experts have been sorting and analyzing the information. At the conclusion of this process a "master plan" will be elaborated in order to know what, how and when to reform. Then, a second group of experts will prepare the set of proposals which will be presented for approval, with the necessary collaboration of the political actors of the country.

Some of the proposals are already being implemented, as they required only internal decrees of the judicial power. This is the case of the sessions of the main chamber of the Supreme Court that, following the public demand for transparency, are being transmitted publicly via TV and Internet since august 2005, and the transcriptions of these sessions can be consulted daily on the internet. Also a new program for the betterment of statistic information has started, so that the information of the resolutions and cases, individual and aggregate, are available to the public. Finally, after years of criticism of the long, complex and baroque way of writing judicial resolutions, the problem is being addressed. Today, the resolutions of the Supreme Court, and gradually all the other federal courts, are more concise, better articulated and with a far superior argumentation structure than those in the recent past.

The changes introduced until now, do not imply a structural change of the justice system. Nevertheless, these are relevant because they make available to public scrutiny the way cases are solved with the objective of generating public knowledge of how the judicial power works; this is, I think, a necessary precondition to elaborate empirical studies that will make those structural changes possible.

The presented proposals are interesting, and from the sorting and classification process we can identify some of the more important public concerns about the justice system. Firstly, the highest number of proposals delivered is those related to criminal procedure. The ideas vary from those that propose just minor tweaks of the system: fixing some procedural flaws or improving the coordination between federal and local jurisdictions; to those that propose the restriction of the powers of the public prosecutor - transferring them to an instruction judge, or the implementation of an oral system such as the one already established in several countries of the region like: Costa Rica, Chile and Argentina.

Closely related to the first set of proposals, there is a second set related to public security, where we can further distinguish those related to common crimes and those related to organized crime. Some measures proposed for both cases are: creation of a national police force, or a strong coordination system between police groups; a reliable system of police records - for police force members as well as for criminals; and a nationwide continuous training system. More specifically referred to organized crime, we have proposals that call for the restriction of the rights of accused individuals so that, according to its supporters, would make that kind of crime easier to fight.

Other subject that has received a high number of proposals, is the "juicio de amparo". As many of you are aware, amparo is a very complex procedure, through which federal courts review the constitutionality of federal statutes, international treaties and executive decrees; verify the constitutionality of practically all administrative action; additionally, review the decisions of all the terminal courts of the country to be according to the procedural restrictions established in the Constitution; and, finally, amparo is the way to contest any arbitrary detention. This procedural complexity and the accumulation of judicial precedents throughout the several stages of development of the judicial system, lead to a very difficult set of problems that trump its full enforceability.

Therefore, the related proposals are many and varied. We have, for example, the one that proposes to broaden its scope of protection to human rights established in international instruments; the modification of the restricting concept of "authority", to allow the possibility of protection against socially powerful third parties like: unions, media groups or political parties. Other proposal deals with amparo admission restrictions, making it stricter, especially in the review of judicial resolutions; this comes from severe criticism raised by the local governments that feel that the current situation of amparo allocates interpretation of local statutes in the hands of federal and not local courts. One last proposal, sensitive to revenue service authorities, is the one related to the general effects of the amparo resolution when a general norm is declared unconstitutional.

We have to underscore that many of these polemic and troublesome subjects have already been addressed in the: Proyecto de Nueva Ley de Amparo that is pending approval from the Senate, the others are still being discussed in the consultation process started by the Supreme Court. The important thing is that the potential modifications to the amparo are central to the way the country's judicial system works because, as we have mentioned earlier, it is the system of review of practically every act of authority. The thought of amending any judicial organ or procedure without simultaneously thinking about its potential connection with the amparo, condemns the amendment to a risky future because sooner or later it will be contested through amparo, and the resolution will reveal the true scope and enforceability restrictions of the amendment, or even its nullification.

Proposals related to civil and commercial subjects have also been received; these refer mainly to flexibility of procedure, mostly through the implementation of alternative conflict resolution mechanisms, such as arbitrage, mediation or conciliation.

I will not continue to describe each of the proposals or group of proposals in detail; nevertheless, it is worth to point out that all these proposals have the clear and common objective of establishing the legal order that will be in force in the Mexican XXI (twenty first) century.

As we have mentioned earlier, some of the actions are already being undertaken, and some others rest on the possibility of collaboration of the "legal operators", as the Italians call them, with the politicians. A good starting point and a byproduct of the consultation process, is the Primer Encuentro Nacional de Órganos de Impartición de Justicia (First National Meeting of Justice Enforcing Authorities) that took place in Jurica, state of Querétaro, last December. For the first time in the history of my country, all the federal and local judges of all levels and specialties discussed, using the results from the consultation process, their common problems and possible solutions. This had magnificent results: the constitution of the Asociación Nacional de Órganos Impartidores de Justicia (National Association of Justice Enforcing Organs), a non-political association that strives for the betterment of the labor conditions of judges and judicial employees, as well as their functions and procedures.

Moreover, as another byproduct of the consultation process, medium term objectives were put forward to level the whole system's performance. First, the creation of a national system of judicial statistics, so that we can work with the same criteria throughout the country or, in other words, that in every place we measure the same things the same way. Second, creating a common informatics or computer system that will serve as a common way of communication using a shared database for all judges. Third, the national system of judicial training so that, on the one hand, all the judges can have common solid knowledge and, on the other hand, serves the specificity of the practical skills needed for each specialty. Great efforts have been made for the betterment of the justice system in Mexico, mostly at a federal level. That is why to have a national training system that is accessible to judges of all levels is extremely relevant for us. We could even say that it is necessary to make all the other needed changes possible.

2006 (two thousand six) is a particularly interesting year in my country, not just due to the coming elections process, but because of the possibility of discussing important national issues. One of which, in my view, should take a central position, is the one related to all the presidential candidate's vision of the prevailing justice system conditions in the following years. I mean not only isolated ideas or means to overcome the actual impasse, but an integral program to reformulate actual conditions of the country, in which we find connections with other national programs, like labor, globalization, scope of rights protection, etc.

The actions taken by the Federal Judicial Power can be very useful means to this end: deliver to society more than 10,000 (ten thousand) proposals, sorted, classified and, to some extent, with a general legal amendment project, so that we can start an orderly discussion of a central issues that affect Mexico's future. I don't know if this is a personal belief or a valid prediction, but it seems to me that if this process I have been talking to you about comes to life, we could enter the fourth stage of the Mexican justice transformation process: the one in which, finally, the system will be considered as a whole and, from that staring point, changes will be undertaken.

Notes
* Justice of the Supreme Court of Mexico and Constitutional Law Professor at Instituto Tecnológico Autónomo de Mexico (ITAM). This lecture was given at Stanford University in January 27th, 2006. I would like to thank professor Raúl Mejía for his support in the translation of this document.
** Years later, three more organs with the same characteristics would be created: the Consejo Tutelar para Menores, the Tribunal Electoral and Tribunales Agrarios.