By Laurence Pantin
Already in 1825, the British jurist and philosopher Jeremy Bentham said that without transparency there can be no justice: a whole leitmotiv for our Supreme Court Observatorythe study with which we seek to find out how true is the perception that there are matters that the Court resolves much faster or slower than the average.
We directed more than 130 requests for information to the Court on the procedural route of the four main issues it hears –unconstitutionality actions, constitutional controversies, amparos under review and direct amparos under review–, from 1995 to 2021.
The data provided (despite its low quality, errors and inconsistencies, when not directly denied) allowed us to infer interesting things. Among them, that a large number of cases have resolution times that are exceptionally longer than the average, that there are large differences between ministers in their average resolution times, that the workload does not necessarily explain these variations, and that the distribution of issues between the presentations is not always equitable, which suggests that the turn can be manipulated.
How can these variations be explained, then? In the Observatory We identify spaces of discretion and opacity in the regulations and practices of the Court, which can be used by the ministers and by the presidency itself to accelerate or delay the resolution of matters, particularly when they touch on sensitive issues for the Government, for private interests or when there is media pressure. To protect the Court itself, these spaces must be closed, and our study does not lack recommendations for this.
In the most recent monthly press conference of Minister ZaldívarAlfredo Maza, a reporter for the media outlet you are reading, asked him about our study. The first thing the President of the Court did was admit that he had not read it, which did not prevent him from criticizing it. He did precisely what he blamed the critics of the documentary series Cannibal: dismiss something without knowing it.
Zaldívar also said that our “great discovery” – that the resolution times of the ministers vary a lot – was nothing new. This “discovery” is just one among many, but let’s not be so strict with someone who did not read the study… What is surprising is that, if it is true that this gap is not new, the president has not sought to reduce it. Visits are made in any local or federal court and when excessive delay is detected, measures are proposed to ‘update’ it. What are, then, the mechanisms that exist in the Court to supervise the proper functioning of the presentations?
Minister Zaldívar also expressed that “at a good eye” he did not understand the logic of our metrics. I want to emphasize that our analysis was not carried out by eye, but based on the data provided by the Court itself. In any case, we have always been available to all ministers to review the document and its methodology.
What is not evaluated cannot be improved. Such is our motto in México Evalúa. That is why we are concerned about the reaction of the minister president: his disqualification makes us think that, for now, he does not seem to recognize that the spaces of discretion and opacity represent a risk for judicial independence.
How distant that minister Zaldívar is perceived to be, who competed for the presidency of the Court with a work plan that put transparency at the center! It only remains to hope that whoever replaces him in January 2023 remembers Bentham’s words.
*Laurence Pantin (@lpantin) is coordinator of the Transparency in Justice program in Mexico Evalúa.