By ALFREDO ATTIÉ*
The legal-political consequences of a reform that can serve as inspiration and a model for implementing a change in the conception and practice of justice in the Americas
1.
The Mexico Project has finally been approved "A reform with the Judicial Power of the Federation" (a Reform with, and for the Federal Judiciary), originally presented, in 2020, for broad political and social debate, and to the legislative and judicial powers of that country, by President Andrés Manuel López Obrador (AMLO).
Andrés Manuel López Obrador leaves office today, October 2024st, when his successor, Claudia Scheinbaum Pardo, former mayor of Mexico City, will take office. Claudia Scheinbaum's victory was yet another achievement by the current president, who also managed to obtain, in the same XNUMX election, a significant majority both in the Mexican Congress and in a large number of provincial governments, for the Partido Popular. Moraine - National Regeneration Movement –, which he founded twelve years ago, ending his term with broad popular support.
I was in Mexico City for an academic appointment at National Autonomous University of Mexico, on election day – a national holiday when families take the opportunity to stroll around the city, visiting parks, churches, palaces and museums, in a cultural and educational exercise that is beautiful to witness – and this support was noticeable, especially from the simplest Mexican people for the cause represented by AMLO. At the end of the day, after voting, the central square was packed, ready to celebrate the victory of the president's candidate and his party. This support was decisive for the Judicial Reform to be implemented, with important changes to the Constitution and the country's laws.
Little understood in Brazil, it is still the object of attacks by hasty jurists and political commentators, Brazilians who seem to ignore its content, working with old prejudices and with the image that the United States and Canada sought to impose on the important Mexican legislative work,[I] My intention, in this article, is to make brief comments on the reform, seeking to demonstrate its political-democratic intention, its legal text and context, as well as its legal-political consequences, which can serve as inspiration and a model for effecting, in the American continent, a change in the conception and practice of justice.
2.
Sergei Eisenstein's film, Long live Mexico!, concluded by Aleksandrov, on the Mexican adventure, of its original peoples until the first decade of the 1910th century, in addition to seeking assimilation between the peoples dominated by the colonizers of the Americas, from the end of the XNUMXth century, and the agents of the Revolution of XNUMX, from the point of view of one or more indigenous ethnic groups seeking to recover their historical and cultural protagonism, undermined by the dominating and exploitative European enterprise, ends with the question of the possibility of these peoples effectively regaining control of their destinies in their own hands.
This quest to recognize and give expression to indigenous elements is a dramatic constant in Mexican history – as well as in that of colonized peoples. In fact, in the Mexican independence movement, constitutional documents were influenced, to a greater extent, by the written Constitution that Napoleon Bonaparte imposed on the Spanish Empire, Letter from Bayonne, which, for the first time, indicated equality among all (or almost all, since there was, both there and here, in Brazil, the exclusion of Africans) male inhabitants, whether they were Spanish from the Iberian Peninsula or inhabitants of colonies on other continents.
The response of the Spanish nationalist-royalist resisters, under the armed tutelage of imperial Britain, came with the Letter from Cadiz, which reproduced the formula for (partial) equality, ultimately inspiring the Plan of Iguala, which expressly spoke of the representation of the people, or “all the inhabitants of the country, without other distinction than their merit and virtues, are suitable citizens to choose any job; Your people and properties will be respected and protected", as granted by Commander Iturbide, on behalf of the so-called Trigarant Army, in 1821.[ii]
At the same time, Brazil was beginning its process of independence from the Portuguese metropolis, a quest for political autonomy that would soon prove to be a fiction, later the object of a historiographical construction of propaganda. Unlike the Mexican Charter, the Brazilian Empire would find legal and political expression in the so-called “granted constitution” of 1824, which, strictly speaking, inaugurated the tradition of institutional acts, typical of the various dictatorships that our history has undergone.[iii]
It is clear that these supposed Constitutions, the fruit of the European pseudo-enlightened imperialist and absolutist fashion – the true disguised face of the praised – by Europeans and North Americans, in an ideology disseminated with remarkable skill, to all the peoples of the world – modern constitutionalism, have yielded, especially in our case, the contradiction of a formal-constitutional people that denies the constitution of its own society and designs forms of exclusion in the creation of power structures, reproducing the metropolis-colony relationship within the permanent colony (which became, from then on, structurally colonizing), which declares itself as independent and, more significantly, conceives itself as an empire.[iv]
Our legal education has been, since the beginning of its Brazilian journey, right after the mystifying political independence, immersed in an artificial vision of social reality. As if imprisoned by the same emancipatory fiction that generated, in truth, the dynastic continuity of the Braganças, in the metropolis and in the colony, in the figure of the two descendants of the Prince who would have been responsible for, I insist, the first Brazilian institutional act, disguised as a Granted Charter, on March 25, 1824 – therefore exactly two hundred years ago.
In the newly independent Brazil, there was no mention of the most important category of law in modern times, which is the person as a subject of rights and obligations. The enunciation of the personal centrality of law here would occur almost a hundred years after the Cry of Ipiranga, in a document considered to be private law, the Civil Code of 1917, even at the time of the promulgation of the current Mexican Constitution. By this I mean that there was no ideal or material obstacle to recognition, even if formal and limited, as was done in the Mexican independence movement, influenced by the Napoleonic political-imperial project, ultimately, that would prevent the Brazilian independence charter from acting in the same way.
However, it seems clear to me that the Brazilian institutional act contained a clear limitation, given the fact that formal independence – not legally materialized until now, perhaps, despite the herculean constituent effort of 1986/1987 – would only occur after the granting of the supposed Constitution, by the Treaty of Rio de Janeiro, signed by Emperor Pedro and the British ambassador in Brazil, the latter representing King John VI of Portugal. A document in which there was a waiver of succession by the emperor and recognition of the use of the title of equal stature, in relation to Brazil, by the king. A whole set of forged acts, in truth, as the subsequent history of both Brazil and Portugal would demonstrate, in political and dynastic terms.
Interestingly, the Brazilian Charter explicitly sought to draw inspiration from the customary subversion of foreign texts, from the national reading of another Napoleonic text, this one by Benjamin Constant, to establish here a version of the Moderating Power, a ghost that haunts us to this day. Brazilian legal education, then, was inaugurated under the sign of continuity, arming itself as an exemplary repetition of the training of elite civil servants that took place at the University of Coimbra, in São Paulo and in Olinda/Recife.
Brazil, which followed colonial laws – a demonstration of the permanence of the order established by the metropolis, replacing Lisbon with Rio de Janeiro – in the civil sphere, but sought to forge its own Codes in the Commercial and Penal areas, to enable, respectively, the free exercise of subaltern power by the elites, in the international sphere, and the control of the people, in the internal environment. Nothing said, of course, about slavery, which provided the foundation for the thought and practice of the moral, intellectual and material cruelty of our history.
Without the recognition of the person, therefore, of rights and duties, what occurred was a form of institutional shuffling, which allowed exploitation and oppression by the minority – which considered itself European, but effectively represented the superior character of the country (which wanted to be new, but was not) – over the majority, poor, free or enslaved.
Our legal education continues to persist in prejudice against the general public, and to propagate the idea that the alliance of Brazilian law with, in truth, elitist impositions, provides a solution to problems that, from this perspective, never tire of reappearing and growing. A true denial, therefore, of rights and duties that, in practice, occupies the media spaces, in the celebration of mainstream legal system and its vain image, drawn from the mirrors it forges for itself. The characteristics of this people will be the object of the real and symbolic violence of these elites, bent under the heavy disconsolation of themselves.
It is the evidence of this impoverished and distorted education that makes me understand the criticisms of Brazilian jurists against the Mexican judicial reform. It is this fear and aversion to the presence of the people and the awakening of their power that immediately triggers in these subordinate minds the warning of the risk to the Brazilian legal tradition – which has never been truly legal and, perhaps, not even Brazilian.
Criticism points to a dogmatism of a colonial order: there is only one model of justice, they claim, consciously or unconsciously, and it is the one that the North Americans created for their own world – and which was copied by Europe, until very recently, even on a continental scale, which, faced with the New World's conception of constitutional control, immediately became haunted by the obsession with creating a constitutional court.
It turns out that this model is outdated and, due to its contemporary inadequacy, it has led to the exhaustion of the republican experience itself – I would not say more democratic – in the United States, and to the sclerosis of its social fabric, taken over by emotions of hatred and a desire for fragmentation, as a result of lingering prejudices, explicit violence and renewed and inventive discrimination.[v]
In our case – Latin American, South Atlantic, Iberian, Mediterranean (European/Asian/African) – and especially Afro-descendant and indigenous (original), this model is quite contradictory, equivocal, if not mistaken. The North American and Canadian criticisms of the proposed and approved Mexican system move in this direction: there is only justice when, they arrogantly claim, “we” recognize the system as justice. I have already criticized this “constitutionalism” and its arbitrary and prejudiced requirements, in addition to highly discriminatory assumptions, which are thus harmful to the very concept of justice. [vi]
The criticism from the United States and Canada, echoed by Brazilians, is directed against an important principle of international law – for which Brazil has fought hard – which is the self-determination of peoples. It disdains the ability of a people to decide their own destiny: to choose and imagine structures and institutions to carry out their common projects. It is worth noting that, even though it is aware, for example, that American judges are elected or appointed, and that the American judicial system is largely based on a constellation of juries, thus involving unequivocal popular participation, even if controlled, this self-interested criticism seeks to prevent the same possibility of participation, in the role and in the selection of judges, from occurring in other countries.
The fear, everything indicates, is that the implementation of a model different from the traditional one would lead new judges to adopt the model designed by the North Americans, including legal education, which has been, unfortunately, copied – and poorly copied – in countries that consider themselves satellites, so that judges trained in that old sclerotic model will become (as they have already done, to a large extent) a byproduct, a parody of the training and performance of North American judges and jurists (and also European ones), who would always be in a position to teach and demand repetition.
It is the model of North American universities and their law and LLM courses – the latter, in fact, assimilated to specialization courses, whose conception and execution are of intensive and demanding training for the adoption of a cultural model of thinking and acting, based on the automatic repetition of formulas, theses and practices, always favorable to the political and economic agents of the European and North American geopolitical and economic interest system.[vii]
Here, I want to link the Mexican proposal – which I consider virtuous and courageous, despite being imperfect and even timid in an essential aspect – to new possibilities for a judicial system that approaches justice and is worthy of that name.[viii]
Let us now move on to a critical analysis of the Mexican constitutional and legal reform, from the perspective of its Constitutions and the text of the Reform itself.
2.
The Mexican Constitution of 1857, resulting from the so-called Liberal Reform, marked the expansion of the constitutional conception of that country, on the one hand, with the care taken to effectively institutionalize the federal state, as well as by the incorporation of a declaration of human rights and a tripartite conception of powers, along the lines of what was, without question, assumed to be natural in a society that intended to be modern, in an effectively republican regime. This came after so many years of instability, especially conditioned by the long conflict with the United States of America, which had ended eight years before the promulgation of the new Constitution.
On the other hand, it determined adherence to the modern constitutional model, influenced once again by France and its expansionist northern neighbor. The Charter paved the way for changes that would culminate in the current Constitution of 1917, considered an international landmark in the constitutionalization of social rights. In both Constitutions, however – the latter in its original wording, which lasted until the reform of 2001 – the concept of nationality remained indifferent, thus failing to consider the evident plurality of peoples, the multicultural character of the Mexican people, and the majority presence of indigenous peoples. Such character and presence were radically at odds with the incorporation of the generic formula of nationality, of a colonial nature, disguised, as in all of Latin America, as modern.
The reform of the first year of this century finally brought – after centuries of struggle, which would culminate, in 1994, with the armed uprising do Zapatista National Liberation Army –, the recognition of multiculturalism and the rights to free determination and autonomy to, among other issues, decide their internal forms of coexistence and social, economic, political and cultural organization; is apply its own normative systems in the regulation and solution of its internal conflicts, as long as they are subject to the general principles da Constitution, and that they respected the individual guarantees, human rights and, importantly, the dignity and integrity of women.
However, still considered insufficient, a Constitutional Amendment is in process, already approved by the Chamber of Deputies, linked to the Reforms proposed by the current Government, including the Judicial Reform, which deepens not only the recognition of indigenous and Afro-descendant people, groups and peoples, but also their right to self-determination and participation in the public and political life of the Country.
In achieving such recognition, the Constitution provided for the need for laws that would regulate the autonomous constitutional structure of the native peoples, including, for what concerns us here, a law that would establish the cases and validation procedures by the corresponding jueces or courts of the decisions emanating from this normative plural self-determination.
This determination is particularly relevant to the topic of Judicial Reform, since it already pointed to the need to readjust the conception of the Judicial Branch itself, which was conformed to the North American model, although with some adaptations. The Constitution, in effect, provided that the judiciary would be composed of the Supreme Court of Justice and Circuit Courts and District, with the ministers chosen by Congress, in a secret ballot, according to certain requirements, and the other judges appointed by the Supreme Court, also in accordance with certain rules.
3.
I think it is very strange that no one has contested the unusual fact that judges, including those of the Supreme Court, are appointed without popular participation, in a country with so many revolutions, and which stated – in a virtuous Constitution, which opened its text with an extensive declaration of individual and social rights – that National sovereignty resides essentially and originally in the pueblo, and, above all, that all public authorities come from the pueblo, which would even have the inalienable right to, at any time, change or modify the way of su gobierno.
Now, if democracy is representative and power belongs to the people, it would be obvious that they should be able to choose all their representatives in the various branches of government, including the Judiciary. However, in my view, this questioning has not been undeniable. And the Mexican Judiciary has remained shaped according to an elitist and oligarchic structure, separated from the constitutional order and the principle of popular sovereignty and representation.
It can be stated that the structure of the Judiciary, conceived as separate and protected from democracy itself, would result from an attempt to forge a universal and unitary nationality, against the evidence of the plurality of peoples. Therefore, denying the capacity for self-determination and the recognition that other cultural and legal orders were present in Mexican territory. An oligarchic and elitist Judiciary would have the function of imposing on all peoples the norms created by the minority that considered itself the holder of decisions regarding the destiny of the Country, inserted in the concert of Nations by means of a legal system, imposed by the Judiciary, recognizable to the dominant Countries of this international society that came together more as a club private, which invites its members at the pleasure of those who direct it, rather than as a Ads, a true public space open to the participation and contributions of all its members.
In fact, the judiciary is the most permeable to this influence of an international order – when truly international, when it brings extremely positive contributions, such as the insertion of a culture of human rights and adherence to and respect for international treaties related to this matter, which covers increasingly broader themes and profound reform of traditional structures of discrimination and prejudice –, or more commonly foreign, which imposes its way of being, its norms, values and culture, through a process of convincing or persuasion outside the control of sovereignty and democracy.
This process begins in legal education, which merely reproduces formulas and does not grant agency to the people, a mere reference that is sadly disregarded by jurists in their training. This is what happens in all countries, of course, but it is especially the model in those that were colonies, where the care taken to preserve the supposedly civilizing ties with the metropolis and the cultural universe it represents is greater.
In Brazil, for example, education remains largely Europeanized, having gradually migrated to North American influence (and even simple copying), in areas that are quite sensitive and decisive for the conception of sovereignty and democracy – always contradicting them –, without ever inquiring into what its peoples understood and defined as legal, based on original and Afro-descendant experiences and cultures, in a word, authentic.[ix]
As I have stated, modern law and constitutionalism are, in truth, the result of an imposition of models forged in the European space, which, in its (anti)political process of building the State, sought to establish the hegemony of the production of law in the hands of the authority that represented the minority in power. This means that there is not really a monarchy as a regime of government, but a relationship, between pact and contract,[X] which creates the image of the sole ruler, to justify forms of political, social, economic and cultural domination. The State is, as I have defined it, a form of alienation of political capacity.[xi]
This means that this structure continually tends to dispossess the capacity of individuals, groups and peoples of their autonomy to conceive political-legal projects of coexistence, to decide their destiny, in the form of an organization based on equality and freedom, which would truly be expressed in the creation and occupation of authentic political-legal spaces and times, that is, democratic ones. It is no coincidence that this form that invades and usurps the space and time of politics, through the domination of a minority (oligarchy), immediately establishes alliances with the social, economic and cultural interests of minorities, who impose their power through the structures of violence that the State grants them or, more commonly, through their own means of violence, recognized by the State.
The State does not actually hold a monopoly on the legitimate use of violence, but rather the ability to authorize the use of violence, real or symbolic, by certain groups over others or over the majority. The State, therefore, inaugurates the process of alienation that economics, as a science and as a practice, undertakes, in what has been called appropriation, possession or accumulation, which are not primitive, that is, they are not the inauguration of an economic system, but rather derive from the political-legal alienation that the State represents. They are also not primitive because they are not exhausted by the foundation of this system of exploitation and oppression, but are behaviors that are perpetuated, in the permanent construction and reconstruction of an anti-politics of exclusion, of distancing, of discrimination, of foreignization, of the marginalization of the people, as a whole.[xii]
The two social phenomena linked to this form of domination, oppression, exploitation[xiii] are, originally, territory and violence, object and act of stipulation of a legal-political order of exclusivity and exclusion. Territory and violence, as they gradually dematerialize and become increasingly abstract, become mechanisms for the construction of an anti-civilizational law and an anti-politics, which gradually undo the characteristics of the peoples on whom they come to affect, in such a way that they forge the idea of unity or universe, seeking to make the equal the rule, an equal that is only the image of those who dominate.
After beginning this process of universalization in European space-time, in an activity of self-colonization, they continue and deepen the identity of this destructive path in the spaces-times that they colonize, dispossess and violate the peoples, cultures, rights, policies and societies that they encounter. It is the permanent accumulation, the constant alienation of the capacities of difference, of otherness. One can perfectly understand the criticism that is made of the Mexican initiative – clearly made from a colonizing perspective – as a simple logical and historical consequence of the continuation of this process of alienation of political capacity, which is the model or form of the State.
This form, which is implemented in the system that has become hegemonic, through it, in the international environment does not want there to be plurality at the national level – in a conception of a lesser rationalism or positivism – and does not accept that even the traditional subjects of international law, the national States, present themselves with different legal systems in the global environment. I want to insist that this criticism I make is established from the point of view of democracy and human rights – and not against human rights, as has commonly been interpreted, mistakenly or maliciously, in any initiative to address the issue of universalization.[xiv]
4.
The Judicial Reform was implemented after more than four years of debate,[xv] with the participation – and resistance – including from the Judiciary itself, based on the initiative of the Mexican federal Executive Branch, with the approval of the federal Legislative Branch and the referral for the manifestation of the States that make up the federation of the United Mexican States, in the process of adopting the Constitutional Amendment. There are many changes. I will analyze those that I consider most important, including in view of the possibility of their critical and constructive use in a desirable reform in Brazil.
The Reform has numerous constitutional and infra-constitutional provisions. What has caught the attention of critics concerns only a portion of what has actually been changed.
Many of the provisions refer to the solution of problems similar to those experienced in other countries, including Brazil (which attempted a reform in 2004, through Constitutional Amendment 45, but did not go that far and, to a certain extent, frustrated expectations of effective democratization and popular control), such as inequality of access to public legal careers – in the case of Mexico, the Reform affects careers in the judiciary (judges), civil servants linked to the judiciary and the public defender's office.
The text of the explanatory memorandum refers to a very sensitive aspect, because it is fundamental for the establishment of a legitimate and reliable judiciary, impartiality dajustiça: “the delivery of federal justice in our country faces big straights. Federal jueces do not always conduct themselves with it éethics, professionalism, independence and impartiality that mustían observe its functions. Many times they succumb to petty interests. The positions you mustíto occupy oneself with méRites are given to family and friends in one familyán to express them resources púmilitants rather than serving justice. The judicial career system has not been successful in ensuring who are ready to be judges unless the people are máThey are honest and best prepared. Nor is there being able to banish corruptionón, but that, on the contrary, endogamy and friendliness have been produced very deep-rooted clientele networks, in which people traffic in plazas, favors are exchanged, the worstúNo price is put on justice."
This is a very serious diagnosis, which has not been contested even by critics of the Reform in Mexico. The Reform understands that the generation of inequality is extremely serious, to the point that there would be an inability to approach and be sensitive to the problems of the people themselves, along with a disconnection from the principle of the rule of law: “All this generates inequalities in the judicial system, makes it difficult for the poorest to be heard and their complaints are answered, regrets society, and generates distrust in their judgments and in the justice system, which, as a whole, impedes them. establishment of a true government of leyes."
In addition, the Reform seeks a way to rationalize the exercise of the function of judging, thus undertaking a change in the jurisdictional competence of the Supreme Court, which loses its Chambers dedicated to judging cases of civil, criminal, administrative and labor law (a jurisdictional body is responsible for resolving conflicts between the judiciary and its employees), and begins to hear and assess only constitutional issues (with an expansion of those entitled to question the constitutionality of acts, but, paradoxically, with the insertion of a procedure for notifying the authority responsible for the act considered unconstitutional, so that it can correct the defect, within a certain period of time, so that, only then, the Court can remedy the unconstitutionality) – in this aspect, the Supreme Court will also judge issues of unconstitutionality by omission, not limiting itself, therefore, to only assessing whether a normative, administrative act (cases of the so-called indirect support) or judicial (case of direct protection) specific rights are contrary to the Constitution – and human rights – relating not only to those provided for in the Constitution, but also to those provided for in International Treaties to which Mexico is a party.
Human rights are now of crucial importance in the work of the justice system, with the creation of a specific body to ensure that issues relating to them are effectively assessed. The Public Defender's Office is now granted a more dignified status, with a view to making it an essential function in hearing and representing the interests and rights of the people.
There are also technical and administrative issues, such as self-regulation of the Judiciary, through a specific law, organic to the judiciary, in addition to the restructuring of the judicial career - this specific law now deals with administrative issues related to competitions for entry and promotion in careers linked to the judiciary, with performance monitoring, guaranteeing the regulation of the irremovability of judges, after a certain period of exercise of the function, in addition to a judicial council, to monitor the activities of judges, and a central body of judicial administration - and for defenders, the institution of collegiality in the judgments of appeals, as well as a body focused on resolving contradictions between decisions.
In this case, the Reform also establishes a system of respect for precedents by the Supreme Court – which would no longer have eleven, but nine justices – so that constitutional issues and the interpretation carried out by this court have repercussions throughout the national jurisdiction. There is a concern that equality and real merit are effectively respected, along with the provision of gender parity in the judicial career. There is also regulation of employees who assist in the performance of judicial functions, and the creation of a national school for the judiciary.
With regard to ending the power that the Supreme Court currently has to suspend acts suspected of constitutional invalidity, it seems interesting to consider that what is established is the possibility that the power or authority responsible for the unconstitutional act may revoke or improve it, within a certain period of time, by means of notification, before the judiciary actually suppresses the act or determines how it should be interpreted and applied. This is an innovation, of course debatable, since it allows the unconstitutionality to persist for longer, generating harmful effects on the legal system, but it consecrates the idea that the judiciary has the function only of controlling the other powers and not of replacing them, when faced with an invalid action or omission.
It is interesting that this containment of the Supreme Court's power occurs even in the face of the implementation of the democratic principle, with the election of its members.
Regarding unconstitutionality by omission, we must not forget that our Constitution, in its original wording, influenced by the European moments of redemocratization, in the Iberian Peninsula, and by the evolution of the German system of constitutionality control, was closely linked to curbing and supplying the omissions of legislators, who remained silent in the face of the need to regulate rights, duties and public policies established by the Constitution, thus generating an ineffectiveness considered unconstitutional.
The Brazilian Constitution, therefore, already provides for the mechanism of unconstitutionality action for omission and injunction, alongside many other mechanisms that were considered, created and implemented to give strength to the 1988 constitutional project, in some cases, or to modulate this constitutional impetus, in other cases, thus confirming an ambiguity very typical of the old and ever new Brazilian legal and judicial conservatism.
Now, how would these concerns and the solutions found be open to sincere criticism? How would they be different from concerns and solutions implemented in countless other countries?
It is worth remembering that this reform process, which began more than four years ago in Mexico, has a democratic nature, structure and context, and has nothing to do with, or even be compared to – as some bad-faith critics have done – the attempted legal-political coup carried out by the illegitimate and despotic-military government implemented in Israel by its prime minister.
5.
The object of criticism of the Reform, however, is at its most relevant and innovative point, which is to make the democratic principle effective in the selection of judges: starting in 2025, elections will be held for such positions, with the establishment of mandates for the federal judiciary (more than one thousand and five hundred positions, including those of ministers of the Supreme Court), with a deadline being established for the adaptation of the State Justices, after which elections will also be held for more than five thousand positions of state judges.
Critics point to the uselessness of elections, which would not, in and of themselves, bring about a change in the profile of the judiciary, that is, that elected judges would be different in their training or conduct, or would have a different culture from those who already hold these positions; that there is a possibility of political influence on the justice system, of cartels and organized crime, in the choices, which ultimately means serious risks to the independence of the judiciary. The Reform, however, introduces criteria for people to be able to stand for election, relating to legal training, time of practice or experience in legal activity, as well as prohibiting candidacies of those who already hold public office.
It is clear that precautions must be taken to ensure that the electoral process is legitimate, that is, that it effectively reflects the formation of the link that must exist between voters and candidates, between citizenship and representation. This includes rejecting candidacies that are shown, upon careful analysis, to be linked to cartels and criminal organizations. These are, in fact, important issues and measures in any electoral process, given the crucial importance of this link of legitimacy of representation.
However, it cannot be said that the entire electoral process will be tainted, given the mere possibility of illegal manipulation. If this becomes evident, there are mechanisms to nullify the election of those individuals who presented themselves to distort the relationship of legitimate representation, or, preventively, to deny the participation of these individuals. Mechanisms can also be put in place to preserve this legitimacy from the actions of anti-democratic and anti-legal groups in certain regions where criminal organizations have harmful influence. To consider in advance the illegitimacy of any electoral process would be, in this case, as in any other, to advocate against the elections and against the very idea of a representative democracy, that is, to establish an anti-legal-political, anti-constitutional stance.
Furthermore, the expansion of the ability to run for office as a judge and to stand for popular election already indicates a cultural change, opening up access to people who would otherwise not be able to hold such a position because they are not part of the traditional oligarchic game or the elitist club of appointing judges, including those of the Supreme Court. One of the reasons for the Reform is the presence of nepotism, cronyism and even corruption in the appointment of judges, that is, the absence of legitimate criteria. We are moving from a situation, such as the current one, in which there is a lack of precision in the selection criteria, to one in which the criteria are set forth in the Constitution and in the law and are subordinate to the democratic principle.
Once the mandate is established, a specific period of time for exercising the function, it also prevents judges from perpetuating themselves in power, on the one hand, or from being removed from exercising their function at the whim of those who, exclusively and without constitutional legitimacy, have held control over access to the judiciary in their hands. This is a very relevant cultural change.
More importantly, it is not only to enforce the constitutional democratic principle – power belongs to the people, who have the right and duty to choose their representatives through periodic elections – but also to raise awareness that the exercise of any public office, especially those established as the responsibility of constitutional powers, depends on the legitimacy of popular choice. On the one hand, it empowers the people, constituents and voters, and on the other, it creates a sense of duty and responsibility for elected and elected officials to honor their representation. In the case of the election of judges, this representation is effective through the full awareness that their role is to interpret and apply constitutional, international and infra-constitutional standards chosen by the people, through representatives chosen to exercise other functions, specifically those related to the legislative process and the establishment of the validity of international standards.[xvi] Interestingly, this more faithfully embodies the principle of separation of powers – which critics, without any plausible justification, claim is being violated.
In this regard, it is a mistake to invoke the so-called judicial independence against the democratic principle, a sign of elitism and an oligarchic conception of agents and holders of a power that should be placed and prepared to serve what the constituent people decided. In the same way, as I have already criticized,[xvii] the invocation of an alleged “counter-majoritarian power” (sic) of the Judiciary, which is strictly speaking non-existent and unconstitutional. When the judiciary decides on the effectiveness of human rights, it does not decide against the majority, but in its favor, since it was the people who decided on the list of rights present in the Constitution and on the adoption of international Treaties related to this matter.
6.
I cannot fail to mention, as a conclusion to the brief analysis I have undertaken, that, although the Reform was bold and coherent, it was timid precisely at its core, in the fundamental aspect of implementing the democratic principle.
By thinking only about the principle of representation, it was forgotten that the Mexican justice system – as in many Latin American countries, including Brazil, lacks above all attention to the principle of participation.
Regarding the meaning of participation and a more comprehensive project for the democratization of justice, I refer the reader to another text, recently published.[xviii]
Here, I would just like to make it clear that the search for establishing more concrete links between citizenship and the power to judge is always healthy, because it gives the people the ability to decide their destiny, taking into their hands instruments and techniques to resolve conflicts and to deal with the interpretation and application of the laws and international texts that they choose – by indirect means, for the most part, up until now – to serve as a means in which common life, the space-time of politics and law, develops.
In the case of peoples from various continents, of course, but in our Latin American case, it allows us to come into contact with diverse cultural ways of achieving justice, based on practices and doctrines of African and indigenous origin. This is why I began this text with a discussion of the destiny of our peoples, the destiny of ourselves, for we have alterity – and not identity – as a fundamental component of our common space-time.
This otherness requires constant respect and inquiry to find out what the people mean and what messages they constantly send us, that is, what we communicate to ourselves in the difficult daily life of a highly oppressive regime that seeks to render this original and rich contribution of the people invisible. This message is conveyed through a more astute language than that which a repressive regime, in the form of the State, wants to impose on us. Because it is more intelligent, given the difficulties of popular expression, determined by the opposition of the force of the various forms of domination, this language is playful, poetic, and more beautiful, despite carrying so much pain.
Democratizing justice means opening space for forms of justice that lead to a more just society: “samba is yet to be born/ samba has not yet arrived/ samba will not die/ see, the day has not yet dawned/ samba is the father of pleasure/ samba is the son of pain/ the great transformative power”.
Let us transform our justice, here, now, together, too.
Alfredo Attié is a judge in the São Paulo courts. Author of, among other books, Constitutional law and comparative constitutional rights (Tirant Brazil). [https://amzn.to/4bisQTW]
Notes
[I] See, as an example, what Ambassador Rubens Barbosa said in the article he published in the newspaper The State of São Paulo, available in https://www.estadao.com.br/opiniao/rubens-barbosa/reforma-do-judiciario-no-mexico/, as well as judge Vladimir Passos de Freitas, in the text published in the virtual legal journal Conjur, available in https://www.conjur.com.br/2024-set-15/reforma-judicial-no-mexico-e-riscos-no-brasil/. The major Brazilian corporate press has been openly opposed to the Judicial Reform of the United Mexican States, speaking, as in the articles mentioned here, of “risks for Brazil”, “end of the separation of powers”, “steps towards a dictatorship”, “capture of justice by organized crime”, among other prejudiced formulas, devoid of information, justification and foundation. This media continues to be resistant to public debate, which could greatly enrich the wealth of its usual commentators, in addition to helping it provide the service and perform the function inherent to the constitution of a press truly worthy of the name.
[ii] ATTIÉ, Alfredo. “Prefácio" in DeSousa Fº, Alípio. The contempt for mixed-race and popular Brazil. Santos: Intermeios, 2024, p. 7-14.
[iii] ATTIÉ, Alfredo. “Anti-constitutionality and Anti-politics" in Democracy and Fundamental Rights. Porto Alegre: Instituto Novos Paradigmas, nº 7 (August, 2021), available at https://direitosfundamentais.org.br/anticonstitucionalidade-e-antipolitica/.
[iv] ATTIÉ, Alfredo. “Foreword: A Sense of History and Justice on the Horizon of Brazil" in SCWARTZ, Rosana MPB et al. 22 and its Territorial Developments. São Paulo: Editora LiberArs, 2022, p. 11-22.
[v] The current Chief Justice of the Brazilian Supreme Federal Court, in his constitutionalist heteronomy, has been symptomatically mixing up concepts – mistaken from a logical and diachronic perspective. He thinks he is faced with two models, one North American and the other European, supposedly placed side by side, as if to make them two options for the free choice of an imaginary constituent. He disregards the fact that the European system arose from the North American one, but that it has been updated in the design and implementation of constitutional courts that are more appropriate to the contemporary constitutional enterprise. I criticized this and other conceptions of Justice and Professor Luís Roberto Barroso in the book ATTIÉ, Alfredo. Brasil em Tempo Acelerado: Direito e Política [Brazil in Accelerated Time: Law and Politics]. São Paulo: Tirant, 2021.
[vi] ATTIÉ, Alfredo. Brazil in Accelerated Time: Law and Politics. São Paulo: Tirant, 2021.
[vii] ATTIÉ, Alfredo. Brazil in Accelerated Time: Law and Politics. São Paulo: Tirant, 2021.
[viii] The Mexican model follows many of the values, principles, themes and proposals that I developed in the late 1980s and early XNUMXs for participatory justice. See the articles ATTIÉ, Alfredo.Justice for the Cities” in The Earth is Round, June 28, 2024, available at https://dpp.cce.myftpupload.com/justica-para-as-cidades/; and ATTIÉ, Alfredo. “Elections in São Paulo: A Contribution to the Debate" in Brasil 247, August 13, 2024, available at https://www.brasil247.com/blog/eleicoes-em-sao-paulo-uma-contribuicao-ao-debate.
[ix] About what is theauthentic, see ATTIÉ, Alfredo. “Anti-constitutionality and Anti-politics" in Democracy and Fundamental Rights. Porto Alegre: Instituto Novos Paradigmas, nº 7 (August, 2021), available at https://direitosfundamentais.org.br/anticonstitucionalidade-e-antipolitica/; on the need to pay attention to constitutional conceptions that are different from those that have been hegemonic until now, see ATTIÉ, Alfredo. Constitutional Law and Comparative Constitutional Rights. São Paulo: Tirant, 2023, and ATTIÉ, Alfredo. African Constitutions. São Paulo: Tirant, 2024, in press.
[X] ATTIÉ, Alfredo. Constitutional Law and Comparative Constitutional Rights. São Paulo: Tirant, 2023.
[xi] ATTIÉ, Alfredo. The Reconstruction of Law: Existence, Freedom, Diversity. Porto Alegre: Sergio Fabris Editor, 2003; ATTIÉ, Alfredo. On Otherness: Towards a Critique of the Anthropology of Law. São Paulo: University of São Paulo, 1987; ATTIÉ, Alfredo. Constitutional Law and Comparative Constitutional Rights. São Paulo: Tirant, 2023.
[xii] See ATTIÉ, Alfredo. Law and Economics: Civilizing Point and Counterpoint. São Paulo: Tirant, 2024, in press. On this assimilation of the foreigner to the peripheral as the foundation of the conception of modern citizenship, see ATTIÉ, Alfredo. Constitutional Law and Comparative Constitutional Rights. São Paulo: Tirant, 2023.
[xiii] And illusion, judgment and representation. See [xiii] ATTIÉ, Alfredo. The Reconstruction of Law: Existence, Freedom, Diversity. Porto Alegre: Sergio Fabris Editor, 2003; ATTIÉ, Alfredo. On Otherness: Towards a Critique of the Anthropology of Law. São Paulo: University of São Paulo, 1987
[xiv] When I said, therefore, that the judiciary is permeable to international influence, I did not mean to establish an a priori assessment that is merely negative. One of the functions of the judiciary is to establish this connection, from a positive point of view, with the international order of human rights. See ATTIÉ, Alfredo.Power of Absence" in ARAGON, Eugene et al. Popular Will and Democracy. Bauru: Canal 6, 2018, p. 35-44; ATTIÉ Jr, Alfredo.The judiciary" in LEMOS Fº, Arnaldo et al. General and Legal Sociology. Campinas: Alínea Editora, 6th Edition, 2014, p. 412-432.
[xv] This discussion began in a solemn session in the Senate in October 2019.
[xvi] ATTIÉ, Alfredo. “Power of Absence" in ARAGON, Eugene et al. Popular Will and Democracy. Bauru: Canal 6, 2018, p. 35-44; ATTIÉ Jr, Alfredo.The judiciary" in LEMOS Fº, Arnaldo et al. General Sociology and Law. Campinas: Alínea Editora, 6th Edition, 2014, p. 412-432; ATTIÉ, Alfredo.Montesquieu: Politics of Passion or the Baron's Legacy" in LYRA, Rubens P. (org.) Political Theory from the Classics to the Contemporary. João Pessoa: CCTA Press Federal University of Paraíba, 2022, p. 137-165.
[xvii] ATTIÉ, Alfredo. Brazil in Accelerated Time: Politics and Law. São Paulo: Tirant, 2021.
[xviii] ATTIÉ, Alfredo “Justice for Cities" in The Earth Is Round, June 28, 2024, accessible at https://dpp.cce.myftpupload.com/justica-para-as-cidades/; ATTIÉ, Alfredo. “Justice Forr:ó” a Democratic Project for Citizen Justice" in Democracy and Fundamental Rights, May 10, 2024, accessible at https://direitosfundamentais.org.br/justica-forro/; SEE YOU, Alfredo. “Justice for Cities" in Brasil 247, June 28, 2024, accessible at https://www.brasil247.com/blog/justica-para-as-cidades.
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