Here several questions arise: What is proposed in the reform? What is the current system like? How does it change? What does presidential power lose or gain?
It is worth clarifying that it is an organic reform. That is not a substantive reform. Which is not an adjective reform. Which refers to the designation systems in the world.
Once again, the eternal debate on the system for appointing the ministers of the Supreme Court of Justice resurfaces. The discussion is not new, but very old. It will be about 200 years old or maybe a little more, or maybe a little less.
The proposal that the government now proposes is also stale. We have heard it in the last five Mexican decades because we lack new ideas. Because of this lack, our current policy seems like a remake of other regimes.
So now it is said again that the appointment system is not good. I repeat that we realized that two centuries ago, but we have not found a better one. The current one is not perfect. The proposed one is worse. And there are three others who are in the same situation.
To begin with, with the current system, history played a trick on us. First the appointment system was invented and then the Supreme Court attribution was invented. It is equivalent to first inventing the pilot and then inventing the airplane. Don’t think I’m teasing.
The Supreme Court model that we follow was born in 1787 with the United States Constitution, as a court of instance whose ministers would be appointed with the participation of Congress and the President. Until then, everything is fine.
But a few years later the map of powers changed and in 1803 the Marbury ruling vs. Madison conferred on him the highest of his entrustments, that of constitutional control of the acts of the other two powers. Thus, it became an unnatural system that empowers those on trial to designate the judges who will try them.
This is the system that currently exists in Mexico, the United States and many countries. We could call it an autocratic system because it is generated from within power. Furthermore, in Mexico you only become a minister with the signature and smile of the President.
However, it has not turned out to be so bad because the times prevent a single official from appointing all the ministers. Currently, of 11 ministers, five were promoted by the current President, two ministers by Enrique Peña and four by Felipe Calderón. Furthermore, it should be said that everyone we have already seen act in the background has done so with professional adequacy, although not all of us always agree with their criteria.
The system that is proposed as a substitute could be called a demagogic system. The same voters choose the three powers. Perhaps they would vote in the same polling station and until the same day. They would be nominated by the political parties and the voters would only be their supporters to supposedly legitimize them.
For sure, bad balance and bad warranty. That doesn’t happen in any serious country. It is based on preferences, not excellence. The good minister must be a good lawyer, not a good candidate.
A third system is bureaucratic, based on seniority and judicial career. It is a ladder model that can provide expertise, but not necessarily the talent and inspiration that a good minister requires. A fourth system is meritocratic and is based on the opinion of specialized unions, which in Mexico neither exist nor are recognized for such purposes.
A fifth system could be called hybrid and would be based on a mixture of the previous systems with two or three ministers appointed by each of the methods described. To all this, other proposals have been added that reach the absurd and range from alphabetical order to random draws.
That is why we have not found the formula for a perfect factory of ministers for 200 years, but a mortgaged house cannot be saved by burning it.
THE BAD CHANGE
The vast majority of lawyers consider that there would be many damages caused by this reform. The election system causes inevitable politicization and cancels professionalization, incentives and the judicial career.
The first thing its authors maintain is that judicial reform will cleanse a corrupt system of corruption. I don’t believe one or the other. Neither does its essential characteristic be corruption nor that it is corrected by electoral methods. But not because I distrust the rulers or their intentions or their intelligence. I don’t believe, simply, because something that comes into collision with nature, with logic and with reality seems incredible to me.
The first because it clashes with nature, since corruption is not in the laws, but in men. We just see that the laws against drug trafficking are very severe throughout the Western world and, however, they have not managed, anywhere, to deprive the market of its drug supply.
Second, because it runs counter to logic, since corruption is an issue of morality, not legality. Those of us who do not commit crimes do not do so by law, but by ethics. My grandmothers never read the Penal Code and yet they never killed, never stole and never defrauded.
Third, because it crashes into reality. I do not believe that all Mexicans want the agents of authority who have to do with drug traffickers, gunsmiths, pirates, evaders, predators, kidnappers, organ sellers, polleros, hungry people, smugglers, kidnappers, thugs, rapists, thieves, to no longer be corrupt. extortionists, invaders, blockers, lions, fraudsters, immoral contractors and who are the true and firm clandestine support of corruption, wanting it to survive for their comfort.
I’m not sure that’s how everyone wants it. This is a country where traffic regulations are not even respected. But the worst thing is that the honest road authority does not care about its compliance and only the thieving road authority monitors its violation.
Let’s avoid fantasies in the design of our systems. Corruption is sustained by strong and suspicious forces. We do not see the force that supports the plane and the star, but it exists. It is not true that these objects are supported in a vacuum, but rather that they are supported thanks to a very real and very concrete power, although we do not see it. In politics, as in physics, nothing stands without explanation.
However, the biggest problem generated by the reform is not the installation of the new system, but the destruction of the current one.
Regarding the first thing, the electoral system is inconvenient. That has only occurred to a country with legal enlightenment as modest as Bolivia and to no other.
The control of constitutionality is vested in highly specialized judges, magistrates and ministers. To give the reader an idea, a minister requires, at the beginning of his position, to have 20 years of specialized training. I repeat, just to start. Calculate that a magistrate requires 15 years and a judge requires 10 years. All this, after having obtained the university degree.
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These highly trained and lucid lawyers “don’t just happen in a pot.” Perhaps it is achieved in one in ten of those who try. Furthermore, such qualified lawyers require a judicial vocation that roots them in their courts and does not intend to go to law firms where they would be millionaires.
But there lies the biggest problem. Between ministers, magistrates and judges, we require around 1,600 judges. The harsh reality would force us to try with 16 thousand professionals to achieve the new court of excellence.
This cannot be achieved in five or 10 years, but in 20 or 30 years. In short, we could be left with mediocre justice in matters of constitutional control for several decades.
Furthermore, with a mortal wound to the system of judicial professionalization which, as we already said, is largely based on a vocation for permanence based on two basic incentives that neutralize the opulence of the private service.
One of them is permanence in employment and that would now disappear due to periodic elections. Another is the ladder system that offers promotion hopes based on training and behavior, which disappears with the election system. And the last is the pride of a judicial career and not a political career.
Furthermore, any sensible person knows that the benefits of democracy fall short of perfect filtration. It is not true that we are so good or so wise and that is why many times we have chosen stupid people, cynics, leperos, remoras, satraps, thieves, murderers, perfidious and even offspring.
Let’s have a little sense and not fall into absurdities. José Ortega y Gasset said that “political thought must be physics and not magic.” He gives, as an example, ethereal suspension. For physics, levitation does not exist because this science does not recognize any force that is not real. For magic, levitation is a force that exists in the mind, in the will or in invocation.
Today, in common and everyday life, physics is very legitimized and magic is very discredited. However, in political life magic is very well positioned. Only in this way can we understand why many people believe that the State and its basic institutions can remain standing and function without anything to support them. That the same thing can stand firm or float in a vacuum. That they can survive without any or none of the six factors that form the pure state of power or state of craticity.
And there is a dark intermediate zone between physics and magic. It is called a “trick” and it is based on the fundamental premise that we do not see reality and, therefore, we imagine that a supernatural force is what acts to obtain the result.
OTHER ASPECTS OF THE REFORM
However, it is timely for us Mexicans to insist, once again, on that demand, already very old, that the principle of relativity not be enshrined in our protection system.
Let’s explain ourselves without technicalities. The principle of relativity is a kind of “lock” that determines that constitutional protection only benefits those who request it and that leads to the absurdity of a government act or law not being applied to those who litigated against it and managed to was declared unconstitutional and did apply, despite its unconstitutionality, to those who did not litigate against it due to ignorance or poverty.
There is, of course, the widespread conviction that a renewal of our system of constitutional protection is urgent. That the meaning and itinerary of this renewal is inspired by providing it with greater scope, greater access and more agility and certainty.
This leads us to consider, first of all, in a serious and definitive way the remission of the principle of relativity. It is a good time that almost all specialists have spoken out in favor of putting an end to the Otero formula. This was, a century and a half ago, a wise and prudent decision. For another time, for another circumstance, for another Mexico.
But this remission must be accompanied by the best substitution so that the general declaration of unconstitutionality produces the best effects and does not, on the contrary, lead us to paralysis or suffering of national life. This exercise undoubtedly requires the investment of a strong dose of reflection and foresight.
All of this highlights the need to correct the vices that we have incorporated into a protection system that has become what it should never have been: rigid, complicated, slow, expensive, elitist and, in the end, weak.
On the other hand, current times warn us about claims for political power that are also based on our constitutional order.
Thus, there are precautions in the sense that a reform of this nature does not disturb the balance between public powers.
What can not be said about an approach, incipient but strong, of the federated states that demand participation in the system of constitutional protection, from which they have been absolutely marginalized through an inexplicable and unjustified jurisdictional monopoly of the Federation.
In short, there are dozens of issues to which those in charge of the fundamental responsibilities of the Nation will have to address. Not to make a law to suit the judges. Not to make a law for the convenience of the rulers. Not to make a law to the mere taste of the legislators. But to make a law that revitalizes and perfects a system that is in need of new life and more nobility.
In Mexico, the entire system of constitutional protection and, especially, amparo, not only constitutes a legal institution, certainly among the most noble and important in our system of Law. If this were the case, it would be sufficient, by itself, to dedicate individual existence to its study, its teaching, its practice or its improvement.
But, in addition to this, protection constitutes an experience for the Mexican. One lives with the existence and presence of protection. It is kept in mind as a solution to abuse and diversion. That’s why it was created and that’s why it exists. Not only to produce legal effects, but to produce effects in the lives of men themselves.
All our compatriots, even those furthest from the benefits of enlightenment, have heard, at some point, of the existence of protection. It is, surely, the most widespread of our legal institutions and, of course, the greatest repository of the aspirations of justice.
The protection has been described as an institution full of humanism. Conceived and developed to serve man, above all. To all men as a supreme value. It is, by essence, a universal instance. Everyone can turn to her and everyone, if necessary, she can protect.
But there is, today, the widespread conviction that a renewal of our system of constitutional protection is urgent. That the meaning and itinerary of this renewal is inspired by providing it with greater scope, better access and more agility and certainty.
We believe that Mexican society has matured enough and that all Mexicans, including the tax authority, want the improvement of justice. This is particularly important in the coming Mexico where we have to learn to legislate more through jurisprudential resolution than through legal reform, given our parliamentary paralysis and given that our local powers may be increasingly exposed to the temptation of constitutional overreach. .
The Americans, for example, have hardly reformed their Constitution in the legal text, but they have constantly done so in the way of interpreting it that the Supreme Court has given it. The student of the American constitutional system will see only a virtual fantasy if he sticks to the text of the Constitution. Hence the famous aphorism that “The Constitution does not say what it says, but the Constitution says what the Supreme Court says it says.”
In short, we trust in the daily advent of better stages of justice and better performance of the legal professions: judiciary, litigation, prosecution, defense, consulting and teaching, to name just a few.
To our pride, Mexico is one of the 13 countries most recognized for its legal excellence. Along with the United States, Canada, Argentina, Chile, Colombia and Uruguay, in America. And with England, France, Spain, Germany, Italy and Austria, in Europe. They would form a G-13 of legal quality. And, within this, our constitutionalism and our constitutionalists stand out. You should ask them. Our Constitution is a global vanguard and every international academic conference is not complete without Mexican speakers.
That is a reality and not the illusionism and sleight of hand that can lead us to live in the midst of a trick, cheating and charlatan politics that promises dreaminess but that distances us from a justice system that does not go awry, that does not tire, that Don’t be scared, don’t make mistakes, don’t kneel and don’t sell out.
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2024-06-20 12:58:19