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Judicial Reform as Insurance Policy: Mexico in the 1990s
Latin American Politics and Society, Spring 2005 by Finkel, Jodi
ABSTRACT
After seven decades of Mexican judicial subordination, President Ernesto Zedillo in 1994 introduced judicial reforms that increased the independence and judicial review powers of the judicial branch. The willful creation of a judiciary capable of checking the power of the president and the ruling PRI appears to counter political logic; but it makes sense as a political "insurance policy" to protect the ruling party from its rivals. PRI politicians, newly unable to control political outcomes at state and local levels and unsure if they would continue to dominate the national government in the future, opted to empower the Mexican Supreme Court as a hedge against the loss of office. This article argues that the likelihood of the reforms' producing an empowered judiciary increases as the ruling party's probability of reelection declines.
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Immediately on taking office in December 1994, President Ernesto Zeclillo delivered to the Mexican Congress a comprehensive judicial reform package, including dramatic institutional changes that would affect the independence and authority of the judicial branch. The Supreme Court was granted the power of judicial review (the right to declare unconstitutional laws null and void) in specifically defined circumstances and was also empowered to settle political controversies between and among the branches of government at federal, state, and local levels. As a result of the reforms, the Mexican judiciary, subordinate to the Mexican president and his Institutional Revolutionary Party (PRI) for the past 07 years, apparently was now being positioned as an independent and effective counterweight capable of checking the power of the ruling party. Indeed, in 1998, four years after the reforms took effect, Mexico's restructured Supreme Court ruled against the PRT on a key political issue, clearly demonstrating that the reforms had fundamentally altered the traditional balance of power between Mexico's executive and judicial branches.
The question that arises from these developments is, why would the Mexican president seek to create a Supreme Court capable of declaring the laws enacted under his administration unconstitutional? Furthermore, why would the president seek to create a court capable of resolving disputes over the rightful boundaries of political power between government offices held by opposition parties and those held by the ruling party?
This study argues that while Mexico's 1994 judicial reform appears puzzling on the surface, it makes sense when understood as a political "insurance policy" designed to protect a weakening ruling party operating in an increasingly insecure political arena. When political players are uncertain about the future division of power, even if they currently hold the reins of power, they may seek to increase the availability of institutional checks on political authority as a hedge against their possible loss of political dominance. Judicial reform thereby becomes a trade-off in which ruling parties are willing to accept short-term costs in exchange for long-term security.
In Mexico more specifically, increases in judicial power presented a potential short-term cost to the PRI, as the more autonomous and newly empowered court could decide cases against the interests of the ruling party during the period of the Zedillo administration. Yet the court's new powers of judicial review could also serve to protect the ruling party against the threats posed by the increasing power of its political rivals, and thereby provide protection for a ruling party that found itself unable to control political outcomes as it had in the past.
The changes in Mexico's judiciary should be understood in the context of the nature of judicial power, the differences between Mexico's common law and civil law tradition, and contemporaneous judicial reforms in Latin America. Mexico's comprehensive 1994 judicial reform package gave the judiciary's new "rules of the game," and subsequent Supreme Court rulings demonstrated the empowerment of the judicial branch. The Mexican experience, moreover, has implications for institutional reforms in other transitioning democracies. Mexico's judicial reform may owe a greater debt to the political calculations of politicians seeking to maximize their own interests than to an altruistic homage to democratic principles; but apparently its long-term consequences may be an autonomous judiciary both willing and able to serve as a true check on Mexico's separation of powers.
JUDICIAL POWER AND THE ClVIL LAW TRADITION
Judicial power is defined in this study by four interrelated concepts: impartiality, insularity, institutionalization, and jurisdiction.' The first two are concerned with independence (the quality of being unbiased and free from external manipulation), the latter two with authority (rightful exercise of power with claim to be obeyed). Impartiality refers to the making of judicial decisions according to the relevant laws and facts. It is the extent to which judges decide cases based on expressed rules rather than preferences of interested parties. Insularity is the degree to which judges are protected from political retribution, and is the lynchpin that enables judges to decide cases in an impartial manner. The formal arrangements that operationalize insularity include tenure (security in office), appointment procedures (career advancement), and salary (financial compensation, which may not be diminished while in office).
