The doctrine of separation of powers has been a foundational principle of our democracy. It prevents the concentration of power in a single authority or individual. Democracy also ensures that the power of the ruler is legitimised by the will of the people, even though questions are often raised on the reach or the limit of the people’s will. A broad consensus, however, has emerged that out of democracy’s three pillars — legislature, executive and judiciary — only the legislature would draw its power from the people’s mandate. The rest remains beyond the purview of popular will. But what may go wrong if any other wing of democracy, particularly the judiciary, is opened to the people’s mandate?

The question has become pertinent as Mexico became the first democracy to
experiment with the idea of a judiciary elected by the common people. The logic
behind this experiment is to make the judiciary accountable to the people. Its proponents argue that this would make the nation more democratic than others. But critics pointed out that apart from procedural challenges, such a mechanism would give the ruling party and the dominant criminal gangs an opportunity to push their candidates into the judicial system. On occasion, the Mexican judiciary has been accused of being partisan, corrupt and inefficient. However, the same judiciary, at times, has resolutely fought against the overreach of the two other branches of governance. Yet, all posts of judges across Mexico were opened to popular will in the name of democratic accountability, placing judges under the vigil of citizens they were meant to serve.

A system of an elected judiciary poses many threats to democracy. First, justice is not supposed to succumb to popular demands or sentiments. It must rely on evidence and judicious interpretation of laws. A judge elected by the people’s vote would be under greater pressure to meet the collective demand of justice rather than to abide by the law. This may lead to the second threat — unrestrained majoritarianism. Democracy has always been apprehensive about a numerical majority dictating the life of those in the minority. To assuage this fear, certain organs of democracy, particularly those meant to protect people with unpopular opinions or beliefs, were kept beyond the ambit of public mandate. For justice to be served impartially and effectively, the judiciary should be immune to majoritarian impulses and extraneous influences.

There are ways of instilling judicial accountability with necessary precautions against exogenous interferences. One such example where judicial impartiality and democratic accountability are accommodated in equal measure is the Missouri Plan of the state of Missouri in America. In the 1940s, dissatisfied with rampant corruption in the judiciary, a merit-based appointment and election-based retention plan was introduced for the judges in Missouri. Under this arrangement, eligible judges of merit are appointed by a Commission for a fixed period of time. Upon completion of their tenure, a retention of the respective posts of judges is decided by a popular election. The election is non-competitive and is meant to determine whether the judges concerned have required public support in favour of their retention. The plan was eventually adopted by many other states of America. However, even the Missouri Plan has its share of limitations. A radical overhaul of the judiciary as a cure may turn out to be more deadly than the disease it is plagued with. Thus, Mexico’s claim of being more democratic than others sounds similar to the Orwellian claim of being “more equal than others”.