Its current effects in Mexico

(1)

Spring Semester 2020

Independent written essay within the field of constitutional law and human rights, 15.0 hp Master's Programme in Constitutional Law and Human Rights, 60.0 hp

Supervisor: Philipp Schroeder

The widespread use of public

consultations and its impact on the rule of law and democracy

Its current effects in Mexico

Adolfo Canales Muñoz

(2)

2 Table of Contents

Abbreviations

1. Introduction

1.1 Purpose of the Thesis 1.2 Sources

1.3 Limitations

2. What do we need to know?

2.1 Defining Direct Democracy 2.2 Defining Populism

3. Rule of Law and Constitutionalism 3.1 Defining Rule of Law

3.2 Formal Legality Theory 3.2.1 Constitutionalism

3.3 The connection between Rule of Law and Direct Democracy

4. Public Consultations in Mexico 4.1 Where is Mexico standing?

4.1.1 Texcoco-Santa Lucia 4.1.2 Thermoelectric Huexca 4.1.3 Mayan Train

4.1.4 Constellation Brands

5. Conclusion

Bibliography Appendix

(3)

3 Abbreviations

Art. Article

AMLO Andrés Manuel López Obrador

Convention 169 Indigenous and Tribal Peoples Convention (No. 169)

DD Direct Democracy

EIA Environmental Impact Assessment

EPN Enrique Peña Nieto

FPDTA Frente de los Pueblos en Defensa de la Tierra y del Agua

GLEBEP General Law of Ecological Balance and Environmental Protection

ILO International Labour Organization

MDD Mechanism of Direct Democracy

Mex Mexico

MORENA Movimiento de Regeneracion Nacional

NHRC National Human Rights Commission in Mexico

NWC National Water Commission

OHCHR Office of the High Commissioner for Human Rights in Mexico

SENRM Secretariat of Environment and Natural Resources in Mexico UNDRIP United Nations Declaration on the Rights of Indigenous Peoples

U.S. United States of America

USD United States Dollar

(4)

4 The widespread use of public consultations and its impact on the rule of law and

democracy

Its current effects in Mexico

1. Introduction

When we hear direct democracy, one of the main ideas that comes to our minds is of course an active and direct participation of the people; this is ideal in any democracy, and it would be hard to argue against it. In democratic systems the people must always be part of the deliberative process and decision making of the government. Another idea that may come to our minds as well is the tension that may rise between the rights of the majority group and the minority groups when these rights collide in the deliberative process; is quite unrealistic to think that in democracies today the decisions taken by the majority actually represent the feelings and thoughts of the entire citizenry of a nation. Nonetheless, this is almost inevitable in democracies nowadays and precisely this idea has been long the center of the debate when it comes to direct democracy and its different mechanisms of participation.¹ The aim of this paper, however, is to analyze the effects that direct democracy may have on the rule of law, especially in the form of public consultations. I hold the idea that in the long term a constant use of this mechanism may bring more damages than benefits to the rule of law and democracy. The effects of these mechanisms of direct democracy are often overlooked because the general perception surrounding these mechanisms is that they are good for society and democracy. This argument may be difficult to contest, nonetheless, this paper aims to reflect on the usefulness of public consultations to democracy in the long term and its possible negative effects on the rule of law. My main idea is that an indiscriminate use of public consultations especially when they are solely motivated by the “will of the people” (or even the governments) could be a legitimate tool to circumvent the legal status and constitutional order in any democracy, because at the end of the day, mechanism of direct democracy seek to gain legitimacy of the people; this is rarely debated, nevertheless, I hope that this papers contributes and shed some light on the debate surrounding the use of public consultations and the consequences that an indiscriminate use may have on the rule of law.

Constitutions have been a prominent tool to change the institutional landscape of nations and shape countries.² Historically constitutions have been considered a clear representation of the will of the people (the constituent power) often expressed in a body of doctrines that serve as the foundations of a nation.³ From a positive legal perspective, these constitutions are consider the Grundnorm or basic norm;⁴ but what happen when forms of direct democracy are contravening the constitutional framework, the basic norm? Mexico’s current government could be a good study case to answer this question. A country that elected in 2018 a popular leader, Andrés Manuel López Obrador (hereinafter “AMLO”); a charismatic politician that aims to make a profound transformation of Mexico. AMLO is

1 Lewis, D. (2013). Direct democracy and minority rights a critical assessment of the tyranny of the majority in the American states. New York: Routledge.

2 De la Torre, C., & Peruzzotti, E. (2018). Populism in Power: Between Inclusion and Autocracy, Populism, 1(1), 38-58.

3 Arato, A. (2016). Post sovereign constitution making: learning and legitimacy (First edition.). Oxford University Press.

4 Ibid.

(5)

5 also known to use mechanisms of direct democracy to decide on important matters, the reason behind the use of these mechanisms is to gain the legitimacy of the people in order to act,⁵ however, what would happen to the rule of law when the use of these mechanisms lacks any legal or constitutional basis? The constant use of public consultations in Mexico under the current government may be a good starting point to find out the consequences that this form of direct democracy may have on the rule of law and on democracy in general.

In direct democracies, popular consultations and other mechanisms of direct democracy give people an opportunity to express their will directly, thus, the negative effects that these forms of representation may have on the rule of law or even on democracy are generally overlooked and rarely discuss. In Switzerland, mechanisms of direct democracy, including public consultations are used on regular basis to decide on important national matters; an example of a country where people vote regularly on all kinds of issues.⁶ In the Swiss case is possible to argue that politicians and lawmakers tend to act always considering the acceptability that their proposals may have for the general population,⁷ in other words, they do not overextend their faculties, because they know beforehand that the people may not support their proposals, and the people have mechanisms of direct democracy available under law to held politicians accountable and also to defend the rule of law and its democracy. It is important to mention that when it comes to constitutional matters, in order to do a proper analysis, it is always necessary to study the context, history and constitutional system of the country. These are some elements that allow us to analyze the particularities of each country which often depend on multiple interlinked factors.

Over the last decade, we have seen a rise of governments and leaders all around the globe that praise themselves of representing the so-called will of the people, especially in many developing countries,⁸ such as Ecuador,⁹ Brazil,¹⁰ Argentina,¹¹ Bolivia,¹² Venezuela,¹³ and the most recent case in Mexico, when in 2018 Andrés Manuel López Obrador and his political movement won the presidential elections, and the majority the congress seats nationwide.¹⁴ Often, these leaders and governments forget that the rule of the majority that democracy entails does not necessary reflects the will of the (all) people; the will of the people is something more deeply rooted in the origins of the nation and is often expressed in a constitutional body that precisely gives life to a nation.¹⁵ The will of the people may not necessarily be represented in a government or in a single mandate of a charismatic leader, it does not matter how popular these could be.

5 López Montiel, G. “Los riesgos de las consultas, para López Obrador.” Forbes. 22 August 2020.

6 Wolf, M. R., Morales Diez de Ulzurrun, L., & Ikeda, K. (2010). Political discussion in modern democracies: a comparative perspective. Milton Park Abingdon Oxon; New York: Routledge.

7 Ibid.

8 Finchelstein, F., & Urbinati, N. (2018). On Populism and Democracy. Populism, 1(1), 17.

9 Rafael Correa, president of Ecuador from 2007-2017.

10 Luiz Inácio Lula da Silva, president of Brazil from 2003 to 2010. Currently in prison on charges of money laundering and passive corruption.

11 Cristina Fernández de Kirchner, president of Argentina from 2007 to 2015.

12 Juan Evo Morales Ayma, president of Bolivia since 2006.

13 Hugo Rafael Chávez Frías, president of Venezuela from 1999 until his death in 2013. Succeeded by Nicolás Maduro Moros current president of Venezuela.

14 Philips, T. and Agren D. (2018). Mexico election: leftist Amlo set for historic landslide victory; Exit polls show baseball-loving nationalist who counts Jeremy Corbyn as a friend is set to become new president. The Guardian (London, England).

15 Paulsen, M. S., & Paulsen, L. (2015). The Constitution: an introduction. New York: Basic Books, a member of the Perseus Books Group.

(6)

6 Thus, mechanisms of direct democracy could be seen as a double edge sword especially when their implementation, not only lead to the tyranny of the majority¹⁶ (or even the minority in power) but also contravene the constitutional framework and constitutional percepts where the rule of law in a nation is founded. This is the other side of mechanisms of direct democracy, which is often overlooked in the scholarly debate, nonetheless, the impact that this may have on the rule of law is something worth discussing.

For the above, in section 2, I will expand on the conceptual part in order to lay the foundations that will give us the fundamental knowledge to further analyze the effects of public consultations on the rule of law and ultimately on democracy, concepts like direct democracy, legitimacy and populism that are key for this paper will be further developed.

In section 3, I will devise the legal framework of this paper expanding on the rule of law, formal legality theory, constitutionalism and their connection and importance in today’s democratic systems. In section 4, the current legal status of public consultations in Mexico will be analyzed, further I will review the official cases where the current government of AMLO had used public consultations to decide on important national and regional issues;

the legal Mexican framework will give us a good opportunity to determine if these public consultations strengthen or not the rule of law in Mexico, and therefore, if their constant implementation is bringing benefits or not to the Mexican democratic system. Finally, in the last section, I will provide concluding remarks and thoughts on the findings regarding the use of mechanisms of direct democracy and its impact on the rule of law; this of course will be reflected on the Mexican case. As it was mentioned above, the benefits or damages that mechanisms of direct democracy may have will vary from country to country depending on their history, context and multiple factors.

1.1 Purpose of the Thesis

The purpose of this thesis is to analyze if mechanisms of direct such as public consultations can have a direct impact on the rule of law and ultimately on democracy. Further, as it was explained in the introduction, the use of mechanisms of direct democracy depends on the context and singularities of each country. For this paper a Mexican perspective will be needed. Thus, besides the general aim of the thesis, there are some objectives that I am looking forward achieving with this paper. First, if public consultations and its systematic use could threaten the democratic order of a constitutional country, in this case Mexico.

Second, I aim to identify through the analysis of the official cases where public consultations have been implemented in Mexico, how is this mechanism of direct democracy impacting directly on the rule of law of the country. Further I will try to analyze if the constant use of public consultations in a country like Mexico could be the hint of a populist government coopting the state by using mechanisms of direct democracy to legitimate their government.

The general aim is to shed some light on how mechanisms of direct democracy could be seen a double edge sword and expand the debate on the legal effects that public consultations may have on the rule of law and on democracy itself; a debate that has been overlooked by the general perception that direct democracy is always good for democracy.

16 Sajó, A., & Uitz, R. (2017). The constitution of freedom: an introduction to legal constitutionalism (First edition.). Oxford University Press.

(7)

7 1.2 Sources

The sources used in the present paper, rely on a variety of primary and secondary sources.

In section 2, a variety of scholarly and legal literature will be used in order to define the concepts that will work as the foundation of this paper. In section 3, legal sources and theories will allow us to explain the connection that public consultations may have on the rule of law. In section 4, the official cases where the current government of Mexico had used public consultations will be analyzed having in consideration Mexican law as well as international standards. The daily morning press conferences of AMLO (hereinafter

“mañaneras”) will be an important source to consider in our analysis. Finally on Section 5, a linkage between section 3 and 4 will be needed to make the concluding remarks surrounding the interplay between public consultations and their effects on the rule of law;

this will be heavily influenced by the findings of the Mexican cases proposed in section 4.

Secondary sources may include but not be limited to a variety of articles on legal issues and political sciences regarding direct democracy. National and international civil society reports on direct democracy. Investigative journalism and media reports and news articles on direct democracy, among other sources that may enrich the present research.

1.3 Limitations

Direct democracy is a very wide subject; thus, the present paper will limit its discussion to one form of direct democracy which is public consultations and the effects this mechanism may have on the rule of law and democracy. Further, the paper will focus mainly on the use of public consultations and its current effects in Mexico. This will allow us to analyze the impact that this mechanism of direct democracy have on the rule of law on a specific country.

Is important to notice that concepts such as direct democracy, rule of law and constitutionalism rely widely on the local experiences that each country may have, therefore, the reader must bear in mind this when pondering the findings of this paper, as the results and its applicability may vary on each country.

The present paper, thus, will be focus on a Mexican perspective and will shed some light on the impact that public consultations as a mechanism of direct democracy may have on the rule of law and the democratic system in Mexico.

Nonetheless, the overall results of the present paper could work as a good starting point for the reader to enrich and open a discussion in their own countries, jurisdictions and experiences regarding the interplay of mechanisms of direct democracy and the rule of law which is generally overlooked. A further debate on this subject could help us to understand the underlying effects that this interplay may have ultimately on democracy today.

2. What do we need to know?

(8)

8 2.1 Defining Direct Democracy

What the people want is, what the people have! Direct democracy is not an easy concept to define as it essentially lacks a universal connotation.¹⁷ It varies depending on the context and country. As democracy,¹⁸ direct democracy if analyzed thoughtfully, can be tracked to Ancient Greece where citizens voted on regular basis on multiple matters of the polis.¹⁹ For the Greeks democracy could not be understood without a continuous participation of the citizenry in the life of the polis;²⁰ citizens were fully involved. This is an important consideration, since often we tend to believe that democracy is a new concept, when it is not. Democracy has long been discussed among all societies, political systems and governments throughout history always seeking to gain the so longing legitimacy necessary so the people can rule. Today modern democracy distinguishes itself from Ancient Greece for the elected representatives which are voted by the people, these representatives are the ones in charge of enacting policies and laws, and in some cases, they can also appoint governments.²¹

Direct democracy on the other hand can be expressed in many forms; from popular initiatives and mandatory referendums, to public consultations among others forms of participation of the people.²² So far this does not sound very different from democracy; in general the main idea remains the same: the people should have an opportunity to express themselves, this is so truth and relevant especially nowadays, where democracies around the world are considered a good thing,²³ however, when it comes to practice this is not always as clear as it sounds, thus forms of direct democracy are in place to gain further legitimacy from the people in today’s democracies. In this paper, direct democracy refers to an institutionalized process wherein citizens express themselves on a ballot by voting. In order to analyze in deep what may be the implications of direct democracy on the rule of law and democracy, I will center this paper on one forms of direct democracy: public consultations.

Public consultations likewise direct democracy is not easy to track; still today there is certain confusion as this mechanism tends to be used indistinctly when applied in the context of direct democracies,²⁴ however, there are certain characteristics that may be relevant for the rule of law and eventually for democracy.

17 Altman, D. (2017). The Potential of Direct Democracy: A Global Measure (1900–2014). Social Indicators Research, 133(3), 1207–1227.

18 Jones, P. (2017). From Socrates to Osborne. (ANCIENT AND MODERN) (George Osborne). Spectator, 333(9828).

19 Asimakopoulos, J. (2014). Social structures of direct democracy: on the political economy of equality. Leiden;

Brill.

20 Árnason, J. P., Raaflaub, K. A., & Wagner, P. (2013). The Greek polis and the invention of democracy: a politico-cultural transformation and its interpretations. Chichester, West Sussex, U.K.: Wiley-Blackwell.

21 Møller, J., & Skaaning, S. (2013). Democracy and democratization in comparative perspective conceptions, conjunctures, causes, and consequences. New York: Routledge.

23 Harrison, R. (2002). Democracy. London: Routledge.

24 The Colombian Paradox: Peace Processes, Elite Divisions & Popular Plebiscites. (2017). Daedalus, 146(4), 152–166.

(9)

9 Public consultations is a term often used interchangeably in different countries, different governments and even depending on different linguistic aspects.²⁵ Examples of this concept could be found in the form of public consultations, popular consultations, citizen consultations, consultations, among many others forms.²⁶ For the purpose of this paper public consultations means a form of direct democracy where the government gives the citizens voice and makes them participate in decisions that impact them directly, so the citizens acquire perspective and can have a better understanding of the priorities and needs of the society,²⁷ but also on the priorities and needs of the current government. This kind of consults can be on multiple issues, infrastructure projects, health, environment, etc. Very different to other forms of direct democracy such as referendums which focus mainly on policy issues.²⁸ Referendums are probably the most well-known mechanism of direct democracy around the world and perhaps the most used one as well.²⁹ Referendums allow people to vote directly on several policy issues that will affect them. The aim behind this mechanism of direct democracy is to prevent change,³⁰ and be a safeguard for the people against the government’s initiatives. The category of referendums is a broad one, for the purpose of this paper, referendums will be understood as constitutional referendums, thus referendums will be considered as a constitutional constraint that prevent legislatures or representatives to take further actions without the votes of the people on policy matters, including of course constitutional changes.

Public consultations on the other hand, do not necessarily seeks to protect the people from enacted laws, like constitutional referendums do, but actually gives the people a voice when the government does not want to decide on controversial issues.³¹ Public consultations are important for social inclusion and prioritization of public problems in a society, however, the way how public consultations are often used by governments, often without a legal framework or an established procedure cast many doubts not only on the effectiveness of this form of direct democracy but also on its democratic value.³²

The differences between these two mechanisms of direct democracy are clear, on one hand constitutional referendums work as a safeguard, as a shield for the people against enacted laws that will affect them. On the other hand, public consultations not only offer a possibility for people to express themselves on policy matters, but it extends the involvement of the people on a variety of issues. This last form of direct democracy often lacks a constitutional or legal framework, and a clear procedure; usually the government itself determines when to use it, thus, the outcome may be bias not only for the subject of the consultation but also for the influence that a political leader or the government may have on the people. This is a very important distinction when it comes to mechanisms of direct democracy.

25 Ibid.

26 Ibid.

27 Saab, F., Bermejo, P. H. de S., Garcia, G. C., Pereira, J. S., & E Silva, S. de A. M. (2018). Does public consultation encourage social participation? Journal of Enterprise Information Management, 31(5), 796–814.

28 Qvortrup, M. (2017). The Rise of Referendums: Demystifying Direct Democracy. Journal of Democracy, 28(3), 141–152.

29 Erne, R., & Blaser, M. (2018). Direct democracy and trade union action. Transfer: European Review of Labour and Research, 24(2), 217–232.

31 Erne, R., & Blaser, M. (2018). Direct democracy and trade union action. Transfer: European Review of Labour and Research, 24(2), 217–232.

32 Saab, F., Bermejo, P. H. de S., Garcia, G. C., Pereira, J. S., & E Silva, S. de A. M. (2018). Does public consultation encourage social participation? Journal of Enterprise Information Management, 31(5), 796–814.

(10)

10 This subtle difference between mechanism of direct democracy could lead us to imagine that public consultations are not always used by governments for democratic purposes, because it does not necessarily entails a further protection of the citizenry, but it actually seeks to gain further legitimacy of the people so the government can act. An indistinctly use of this mechanism is often perceived to be beneficial for democracy, when in reality it may be the perfect venue to weaken the rule of law and damage a democratic society. The whole point of mechanism of direct democracy is to gain legitimacy, however, we should analyze if this so-called legitimacy, brings benefits to the democratic system, or if this legitimacy, is just a further opportunity to allow the rule of the majority to take place. For political science legitimacy does not mean only that the rule of the majority should prevail;³³ this of course tends to happen, however, there are two underlying values that legitimacy entails.

First, the government when gaining legitimacy, should consider, listen and take into consideration the feelings of the people towards a specific subject,³⁴ if not, legitimacy would remain just as a requirement for the rule of the majority to prevail and this is not the objective of legitimacy, however, this is rather common when mechanisms of direct democracy are used by the governments to wash their hands-on controversial decisions, without really considering what the people feelings are. The second underlying value has to do with the influence that people have,³⁵ this means that when it comes to legitimacy and direct democracy we should not consider just the plain votes that the people can cast, we should also consider the influence that certain individuals have when expressing their views on certain issues, because at the end of the day, this influence affects the decisions of the majority. For example, when public consultations are conducted by governments, generally, the leaders of the government will have a bigger influence on the people, this per se is not bad; at the end of the day everyone has the right to their own opinions, however the problem is when the government are being the judge and interested party at the same time. This when it comes to public consultations could be translated in an uneven field, where the decision of the people could be influenced by their government officials. If these two underlying values are waived when implementing public consultations, or other mechanism of direct democracy then legitimacy would not be gain by the government; legitimacy would remain just a requirement to be achieved by the government in order to act on controversial decisions, or even to circumvent the legal framework. Understanding this so longing legitimacy just as a requirement without a further value when implementing mechanisms of direct democracy could bring more damages than benefits for the rule of law or even democracy in the long term.

The constant used of mechanisms of direct democracy to gain legitimacy for a political system or a government could perhaps be a further sign of a system that started to crumble a long time ago. Direct democracy has increased following World War II,³⁶ this could be the result of a disenchantment and dissatisfaction of people with their governments, politicians and perhaps democracy in general, a dissatisfaction, that may continue to be present today around the world in democratic countries. The problem whatsoever, is that even today mechanisms of direct democracy are hardly measure so there is not enough data or information to assess how they are spreading around the world, or how these mechanisms

33 Tóth, G. (2012). Constitution for a Disunited Nation On Hungary’s 2011 Fundamental Law . Budapest: Central European University Press.

34 Ibid.

35 Ibid.

(11)

11 are being used and ultimately what are the effects that they may have on the rule of law and democracy, among other effects that they may have on society.³⁷

In countries with a long tradition of using direct democracy as a safeguard for the people like Switzerland the “world-champion of referendums,”³⁸ direct democracy may be good for the rule of law and democracy. However, in countries with little experience using mechanisms of direct democracy; that are in a constant political turmoil; where the mechanisms of direct democracy instead of working as safeguards for the people, actually try to give the government an extra mandate to decide³⁹ on sensitive issues, then mechanisms of direct democracy may not be the best tools to strengthen the rule of law or democracy. Examples of poor implementation of these mechanisms can be found in Bolivia under Evo Morales; Ecuador under Rafael Correa; in Republic of Congo under Denis Sassou-Nguesso,⁴⁰ and more recently in Mexico with Andrés Manuel López Obrador and his public consultations.

A poorly implementation of mechanisms of direct democracy and its indistinctly use in the long term may bring more harm than benefits to societies where these mechanisms are a common feature to decide on multiple and often sensitive issues. This could be the perfect storm not only for the so-called populism to rise again, but also it may be the downfall of the rule of law and democracy as we know it.

2.2 Defining Populism

Over the last decade, we have seen the rise of populist governments all around the globe, especially in many developing countries; the phenomenon of populism has gained popularity.⁴¹ There is not consensus of where or when this concept was created, however as democracy, glimpses of this phenomenon can be track to Ancient Greece.⁴² Nevertheless, it was not until the 19^th century that populism gained momentum and notoriety; this happened almost at the same time in two very different countries: Russia and the United States of America (hereinafter “U.S.”).⁴³ In these countries, the concept of populism was shaped on movements of workers that seemingly decided that the elites in general where the real cause of society’s problems.⁴⁴ Later on in the 20^th century this concept of populism expanded globally and eventually reached power in the form of popular governments; in Argentina with Juan Perón⁴⁵ and in Brazil with Getúlio Vargas⁴⁶ populism became a face.

These modern populists’ regimes opened the doors to what we understand as populism today; a charismatic leader, a champion of the poor; ever since populism has gained momentum and presence around the world.

37 Ibid.

38 Kobach, K. (1993). The referendum: direct democracy in Switzerland. Aldershot: Dartmouth.

39 Qvortrup, M. (2017). The Rise of Referendums: Demystifying Direct Democracy. Journal of Democracy, 28(3), 141–152.

40 Ibid.

41 Finchelstein, F., & Urbinati, N. (2018). On Populism and Democracy. Populism, 1(1), 17.

42 Jones, P. (2017). From Socrates to Osborne. Spectator, 333(9828).

43 Sevilla, I. (2017). Populismo (I): Qué Es El Populismo: Historia Y Concepto.

44 Crothers, L. (2018). Why Populism? Why Now? An Introduction. Populism, 1(1), 3–13.

45 In 1946 Perón was elected President, thus, Argentina became the first country to have populist regime in power.

See Sznajder, M., Roniger, L., & Forment, C. (2013). Shifting frontiers of citizenship: the Latin American experience. Leiden; Brill.

46 Getúlio Vargas, was president of Brazil four times, until his suicide in 1954. See Ibid.

(12)

12 So far defining populism has been a difficult task; like democracy, populism has manifested throughout history in different movements, shapes and expressions; from charismatic leaders to dictatorships always with its specific characteristics depending on the time, context and circumstances of where it happened.⁴⁷ Nonetheless, I hold the opinion that there are certain elements that can be associated to the phenomenon of populism in most of its forms and expressions regardless of the time that could help shed some light on what populism entails today. For the purpose of this paper the elements that populism entails are the following: a) a leader, messenger of the “silent majority;”⁴⁸ b) a simplification of the reality with a clear and simple message that exposes the problems of a society in two ways:

those who tell lies and those who tell the truth;⁴⁹ c) this coherent message adds to the idea that populism seeks to give power to the people and at the same time, it should be based on the immediate expression of the general will of the people (Vox Populi);⁵⁰ d) a close and intimate relationship between the leader and its people or followers;⁵¹ and e) the monopoly of the “general truth.”⁵²

Hugo Chávez and Nicolás Maduro in Venezuela; Rafael Correa in Ecuador, Evo Morales in Bolivia, Cristina Fernández and Alberto Fernández in Argentina, Fidel and Raúl Castro in Cuba and most recently Andrés Manuel López Obrador in Mexico are just few examples of populist leaders that encapsulate all the above mentioned elements that entails populism.

Populism is perceived as a manifest symptom that there is an on-going crisis around democracy.⁵³ Often populism includes a bad connotation, where in the worlds of Paul Ricoeur, is “the discourse of the other,”⁵⁴ thus, populism always entails a constant tension between “us” and “them” as if it meant “good” and “bad.” Populism tends to rise when democracy starts to crumble, and the best way to take over an “unpopular government” is by legitimizing a movement or a certain leader as the good or better option for the citizenry.

It is often the case in countries where populism reaches power that a tension within the powers of the state emerges; almost invariable with time this tension tends to rise. Populism tends to be impatience with constitutionalism and division of powers. Thus, populism usually have two options, the first one is waiting for the constitutional process in order to change the laws and institutions that it considers unnecessary for its mission, or the second option (the fast track) which for populism means waiving the constitution framework and laws; generally to follow this second option, populism needs legitimization, and the easiest way to gained legitimization is by gaining the support of the people. This is important for direct democracy, because at the end of the day, mechanism of direct democracy, such as public consultations are the best and fastest tool not only to give voice to the people, but most importantly to legitimize the actions of a government, however, when legitimacy is not included in the implementation of this mechanism of direct democracy, then public

47 Finchelstein, F., & Urbinati, N. (2018). On Populism and Democracy. Populism, 1(1), 15–37.

48 Retamozo, M. (2012). Democracias y populismos en América del Sur: Otra perspectiva. Un comentario a «la democracia en América Latina: la alternativa entre populismo y democracia deliberativa» de Osvaldo Guariglia. Isegoria, 47, 615–632.

49 De Blasio, E, & Sorice, M. (2018). Populism between direct democracy and the technological myth. Palgrave Communications, 4(1), 1–1.

50 Abts, K., & Stijn, V. K. (2015). Populism. International encyclopedia of the social & behavioral sciences edition: 2nd revised; international encyclopedia of the social & behavioral sciences edition: 2nd revised.

Katholieke Universiteit Leuven, Elsevier.

51 Finchelstein, F., & Urbinati, N. (2018). On Populism and Democracy. Populism, 1(1), 15–37.

53 Godin, C. (2012). What is populism? Cités, 49, 11–26.

54 Ibid.

(13)

13 consultations could be the perfect option for a government to circumvent the legal framework.

Modern democracies today almost by general rule have safeguards to protect the stability of the nation; the principal shield of a democratic nation tends to be its constitution.⁵⁵ Constitutions in democracies are very important, they embody the soul and the heart of a nation and they work as a tool which embeds the fundamental rights of the people.

Constitutions generally are regarded as fundamental laws that not only protect the stability and status quo of a nation, but they can also change the institutional landscape of a country.⁵⁶ This is important for direct democracy, because at the end of the day, mechanism of direct democracy, such as public consultations are the best and fastest tool not only to give voice to the people, but most importantly to legitimize the actions of a government, however, when a populist government faces precisely these safeguards contained in the constitutional body and legal framework and then turn to the implementation of mechanisms of direct democracy without seeking legitimacy but just as the easiest path to circumvent these safeguards, the legal framework and the constitution, then the only possible outcome will be the erosion of the rule of law, and perhaps the erosion of democracy itself.

It is important to mention that not everything is wrong with this so-called populism. In my opinion modern populism has been present as a sign that something is not going well in our democratic systems around the world. Populism has not been able to bring any long term solutions to our modern problems neither, however, in my opinion it has been very efficient in pointing out the problems that even today sometimes we refuse to acknowledge or even see in our societies; unemployment, insecurity, lack of education, famines, lack of government accountability and transparency, poverty, climate change, among many others.

Problems that are real; problems that are connected to democracy, and problems that we must face as soon as possible.

3. Rule of Law and Constitutionalism

3.1 Defining Rule of law

Rule of law is not an easy concept to define, not even for political scientists or legal theorists that often hold contrasting understandings towards the meaning of the rule of law.⁵⁷ As democracy and populism, the rule of law can be track to Ancient Greece, where democracy and rule of law were synonyms.⁵⁸ Law was not made by a group of legal specialists or government officials like today; law was made daily by the citizens, their interactions and equality before the law were inherent values regarded by the Greek society.⁵⁹ Especially for Plato in his legal code The laws, the rule of law represented an enduring stability with restraining effects for potential tyrants.⁶⁰ Plato also was of the idea that governments should be bound by law, and that law was the reflection of the people. The rule of law has come a

55 Sajó, A., & Uitz, R. (2017). The constitution of freedom: an introduction to legal constitutionalism (First edition.). Oxford University Press.

57 Tamanaha, B. Z. (2004). On the rule of law: history, politics, theory. New York: Cambridge University Press.

58 State of Union Address, quoted in Steve H. Hanke, “Point of View: Legalized Theft,” Forbes, 4 March 2002, vol. 169, issue 5.

60 Ibid.

(14)

14 long way that started in Ancient Greece and has endured many social, political and economic changes throughout history to what we understand as the rule of law nowadays.

Today explicit or implicit understanding of this concept suggest multiple meanings depending on the country and context.⁶¹ For some the rule of law includes the protection of individual rights,⁶² for other theorists, there are almost as many conceptions of the rule of law than people defending it,⁶³ for some scholars there is an ever-present danger of becoming rule by judges and lawyers instead of law.⁶⁴ For the purpose of the present paper, the rule of law will be considered from a legalist conception as an institutional ideal that places law as a fundamental element for the functioning of any democracy, in other words, is an ideal that holds that no one is above the law (the written law).⁶⁵

Rule of law is important for this paper because is not only considered as fundamental in democracies today, but it is also considered as a restrain against governments and tyrants.⁶⁶ Rule of law together with constitutions are an essential part for democratic systems nowadays as they go together, and they reinforce each other.

Let us now explained the formal legality theory of the rule of law which is the dominant among the theories that exist surrounding the rule of law.⁶⁷

3.2 Formal Legality Theory

Formal legality is the dominant understanding of the rule of law for liberalism and capitalism, the reason is the predictability that it offers.⁶⁸ Predictability gives the possibility to forecast with a fair degree of certainty the actions that governments will take in certain given circumstances. As expressed by Lon Fuller there are certain characteristics that legality requires for the rule of law; the law needs to be general, clear, public, have endurability over time, show consistency between the rules and the legal actors, not to be retroactive against contradictions and against requiring the impossible.⁶⁹ The idea behind this formulation is to give people freedom to decide their activities having in consideration its legal implications in advance. This formal quality has been identified by theorist and by the World Bank as the reason why the rule of law has been so universally accepted.⁷⁰ These minimum requirements prohibit governments to act in arbitrary forms and allow the citizenry to predict what will the governments do, and thus be prepare for any given outcome.

Neutral morality is another characteristic of formal legality, which means that laws lack moral meaning;⁷¹ laws only need to fulfill certain requirements and an established

61 Morlino, L., & Palombella, G. (2010). Rule of law and democracy: inquiries into internal and external issues.

Leiden; Boston: Brill.

63 Waldron, J. (2002). “Is the Rule of Law an Essentially Contested Concept (in Florida)?” Law & Philosophy.

65 Morlino, L., & Palombella, G. (2010). Rule of law and democracy: inquiries into internal and external issues.

Leiden; Boston: Brill.

67 Ibid.

68 Ibid.

69 Lon L. Fuller, The Morality of Law, 2nd revised edition (New Haven: Yale Univ. Press 1969) Chap. 2.

70 Tshuma, L. (1999). The Political Economy of the World Bank’s Legal Framework for Economic Development.

Social & Legal Studies, 8(1), 75–96.

(15)

15 procedure to be enacted. This morally neutral perspective of the rule of law, could make rule of law a double-edge sword; imagine a government where child labor was legal, here it does not matter the morality or oppressiveness of the laws as long as they comply with the rule of law. Consistent with this formal legality theory, governments can do as they wish, if the comply with the legal rules declared in advance. In order to do something not legally permitted, the government only needs to change the laws first; making sure to meet the requirements of the legal form.⁷²

For this legality theory, governments can do anything as long as they pursue their aims in terms consistent with the legal rules declared in advance and legitimized by the people. This is relevant for this paper; with so many mechanisms of direct democracy a populist government could implement any of these mechanism as a short cut to change the rules that they do not consider necessary for its goals. Implementing mechanisms of direct democracy that are endorse by the will of people could be the easiest way to legitimize the actions of any government. In countries with a well-established legal tradition dedicated to protect and preserve the rule of law constitutional referendums probably would not be a possibility as this mechanism works as constitutional safeguard, however, when it comes to others mechanisms of direct democracy, such as public consultations, then the outcome would be very different as this mechanism does not work necessarily as a safeguard, it could be the perfect venue for populist governments not to only circumvent the legal and constitutional framework, but also to circumvent democracy.

The legitimization that this mechanism of direct democracy offers by gaining a new and direct mandate from the “people” in an easy “popular” way without any procedure to change the laws, could be according to the formal legality theory, the perfect option to comply with an established rule to gain a new mandate. The laws obtained their authority from the consent of the governed, thus, asking directly the people sounds like the most democratic good option, at the end of the day that is what democracy seeks, that the citizens feel that they are the authors of the laws (even if the laws are evil).⁷³

3.2.1 Constitutionalism

Constitutionalism, can be understood in multiple ways, however, for the sake of this paper, the meaning will be rather simple: constitutionalism means that there is a material constitution and the constitution and what is in there matters.⁷⁴ This definition would be incomplete if we did not define as well what is a constitution and why it is important, why should it matter.

Constitutions are not isolated documents,⁷⁵ and their connection to the rule of law is hard to question; constitutions embody not only the basic laws of a nation, but represent the social contract that exists between the state and the people.⁷⁶ Constitutions are part of a body of principles and rules that help to build the character of a nation, but also build the rule of law.⁷⁷ Constitutions encompass a set of rules that are fundamental for the country,

72 Ibid.

73 Habermas, J. Beyond Facts and Norms, translated by William Rehg (Cambridge: MIT Press 1996) p. 449.

74 Sadurski, W. (2016). Transitional Constitutionalism Versus the Rule of Law? Hague Journal on the Rule of Law, 8(2), 337–355.

75 What Is a Constitution? (1988). OAH Magazine of History, 3(1), 41–51.

76 Bisarya, S., Cordenillo, R., Sample, K., & International Institute for Democracy Electoral Assistance. (2014).

Rule of law and constitution building: the role of regional organizations. Stockholm: International IDEA.

77 Ibid.

(16)

16 they contained fundamental rights of the citizenry; the rules regarding the separation of powers; the procedures to create laws; constitutional review in some cases and they are built in a manner that all these set of rules remain immune to everyday changes, and work as a constraint to populist leaders and legislative majorities, and of course constitutions determine what constitutes an unconstitutional acts.⁷⁸

Constitutions matter today, for the protection, security and certainty that these documents offer to the citizenry against the exercise of acts made by the executive or legislative powers.

Thus, in open democracies, constitution-making and populism could be seen as a double- edge sword; the reason behind this idea is that often populist leaders or governments tend to waive the set of rules contained in the constitutional framework. The easiest way to do this is to rely purely on the will of the people. In this modus operandi mechanisms of direct democracy such as public consultations could be the perfect way to legitimize their actions without any legal or constitutional basis. The specific weight that populism puts on the leaders and the control these leaders have on the people is the essence to waive or circumvent any legal or constitutional constraint; once in power populism can do almost anything if that is what the people want.

3.3 The connection between Rule of Law and Direct Democracy

Constitutions, democracy and the rule of law reinforce each as they are interconnected. The rule of law tends to bound everyone in a nation (government included) to the law;

constitutions usually are regarded as the supreme law of a nation and I would add that they are the foundation where rule of law can be built on a democratic country. Generally, constitutions contained rights and obligations of the citizenry, but they also work and contained the safeguards of a nation with multiple rules to protect, empower and ensure the application of the rule of law. Thus, rule of law is not only connected to democracy but also connected to constitutionalism; thus, constitutionalism could be the best tool to protect the people of a nation from harm. Following this order of ideas, the legitimacy that the rule of law provides to democratic systems could be connected on a certain level to the constitutional and the legal framework of a nation. In democratic countries the strength of laws depends on an active participation of the people through their representatives who are the ones in charge of enacting laws that provide the democratic system with certainty, security and equality.

Today what populist regimes tend to do when in power, is to forget the connection that existed between the people and their representatives, along with the necessary constitutional process to change laws including the constitution itself. This is where mechanisms of direct democracy come to play, in other words, for populism a new connection is formed, now the people and the populist leader, are united without the need of representatives, and the best tool to do this is through a mechanism of direct democracy. This again, could sound very democratic, a direct connection between the people and the leader without any intermediaries, however, this way of proceeding that often is dressed as legal when used disguised of mechanisms of direct democracy, in fact could end up undermining the rule of law. Mechanisms of direct democracy like public consultations, offer the people an opportunity to have an active voice on important matters but this mechanisms also offers the government a direct communication with the people, and further influence in the peoples mind when it comes to implementing this public consultations. In this scenario, there is only

78 Sadurski, W. (2016). Transitional Constitutionalism Versus the Rule of Law? Hague Journal on the Rule of Law, 8(2), 337–355.

(17)

17 the leader and its people, without the need of any representatives or constitutional processes that usually requires time, and require the engagement of multiple political forces, at the end the easiest and fastest way is to ask the people directly what they want, and the government in this case could be the one advising the people which option is better for them (or their own interests).

What can be more democratic than the people itself expressing their voice to their leader, especially when this form of expression appears to abide by the rules of direct democracy, however, the problem relies on the actual influence that populist leaders may have on the people. Imagine a nation with a populist leader that use mechanism of direct democracy to legislate or make decisions circumventing the constitutional framework, the due process and the laws already established, with the only ratio that the “people want it,” now add to this scenario a populist leader that have a lot of influence on the people. Implementing mechanisms of direct democracy that appeared to abide by the rules, in order to circumvent laws and the constitution without proper legitimation from the people, could not only undermine constitutionalism, but it could also undermine the rule of law and democracy itself.

4. Public Consultations in Mexico

4.1 Where is Mexico standing?

In 2018, after running three times for president, experiencing one electoral fraud and numerous post electoral tumults, in a mix of anger and hope, Andrés Manuel López Obrador took office for the first time as president of Mexico in an historic moment.⁷⁹ AMLO and his political party, Movimiento de Regeneracion Nacional (hereinafter “MORENA”) became the hegemonic political power in Mexico, with an unprecedent support from the people, winning most of the seats on the federal and local elections.⁸⁰

Since then, the President has been using public consultations to decide on national matters on multiple issues and projects; from public policy to infrastructure projects affecting millions of people directly. The use of this mechanism of direct democracy, however, lack any legal or constitutional basis, at least the way the current government is conducting these public consultations. While AMLO was running for office in 2018, he made everyone aware of how he was going to seek the people’s participation and involvement on national matters; in an interview last year the president stated that “for 30 years I have been using hand voting to decide on important matters”⁸¹ a hint of what was coming.

On a federal level, the use of mechanisms of direct democracy is not a common practice in Mexico. Mechanisms of direct democracy vary from country to country, depending the history, democratic maturity of the people and context, among many other factors.⁸²

79 Dresser, D. (2018). Can Mexico Be Saved?: The Peril and Promise of López Obrador. Foreign Affairs, 97(5), 157–168.

80 Montes, J. “Mexico's New President-elect Close to Supermajority in Congress.” The Wall Street Journal. 05 July 2018.

81 Grimaldo Santana, A. “¿Participación ciudadana? Éstas son todas las consultas populares de AMLO.” Heraldo México. 03 September 2019.

82 Menezes, D. (2014). National Mechanisms of Direct Democracy and Citizens’ Perceptions of Vote Efficacy in Latin America.

(18)

18 Regarding the use of consultations in Mexico, on the federal level there are four cases where these mechanisms of direct democracy can take place. The first case can be found on the Indigenous and Tribal Peoples Convention (No. 169) (hereinafter “Convention 169”) of the International Labour Organization (hereinafter “ILO”) which Mexico is a member. On article 6 of the Convention it is established that governments shall consult the indigenous peoples and carried out consultations whenever legislative or administrative measures affect them directly.⁸³ The second case is established by the General Law of Ecological Balance and Environmental Protection (hereinafter “GLEBEP”). Article 36 of this law establishes that after conduction the Environmental Impact Assessment (hereinafter “EIA”), the extract of it will be published and if any individual wants to learn more about it, public information meetings will be held in order to explained the outcomes of the EIA.⁸⁴ The third case is established in article 35 of the Mexican Constitution⁸⁵ where the rights of the citizenry are enumerated; fraction VIII establishes that the citizenry has the right to vote on popular consults on national and regional matters; these popular consults must be convene by the Congress, by a request from the President, or by 33 % of the members of either the Congress or the Senate, or for matters of national transcendence by at least 2 % of the electorate, which by March 2020 was of 90,036,367 citizens,⁸⁶ and when the participation of the consult is at least 40% of the citizens enrolled in the nominal list of voters the result will be binding for all the powers of the nation. Finally, the fourth case refers to public consultations; this mechanism is similar to what is established in article 35 of the Mexican constitution, however there is a substantial difference; there are no legal basis to conduct this kind of public consults in Mexico. This would suggest that this kind of public consultations are not binding because they lack legal basis; there are no laws regulating this form of direct democracy, and there is no clear procedure on how and when to invoke them.

The current president in Mexico however has been the one pushing and calling for this kind of public consultation to decide on national matters; sometimes these public consultations has been officially conducted by the current government and other times they have been unofficially conducted just by the president.

Is not surprise that this last mechanism of direct democracy is the favorite of the president of Mexico to resolve sensitive matters that affect the entire country; the only requirement to implement these public consultations is the will of the people, and he is a very popular president with a lot of influence on his followers. In the words of AMLO “el pueblo pone y el pueblo quita,” the people always have the last word. In a hyper-presidential country like Mexico,⁸⁷ the president tends to have the last word in all matters and have a major influence on the people and decision making of the country, something very dangerous for a so-called democratic country, the increased use of this kind of non-binding public consultations in Mexico conducted by the president should be a further worry for the rule of law and for democracy itself.

The following cases are the official public consultations so far used by the current government of Mexico; all these consultations where conducted by the government and called by the AMLO. The reasoning behind why these public consultations are being conducted in the following cases is not always clear and the subjectiveness to decide which

83 See Appendix 1.

84 See Appendix 2.

85 See Appendix 3.

86 Instituto Nacional Electoral México. Estadísticas Lista Nominal y Padrón Electoral. 27 March 2020.

87 Mayer, J. (2004). [Review of Mexico Under Siege: Popular Resistance to Presidential Despotism (review)].

The Americas, 61(2), 336–337.

(19)

19 projects or issues should be decided by these public consultations has raised many doubts about the impact that this mechanism of direct democracy could have for the certainty and predictability especially when their implementation lacks any legal basis, something expected in a democratic nation, but also something that could affect directly the rule of law in Mexico.

4.1.1 Texcoco-Santa Lucia

In 2014 former president of Mexico Enrique Peña Nieto (hereinafter “EPN”) announced the construction of the Texcoco Airport. This airport was supposed to be the largest infrastructure project in Mexico in a century and was going to be the legacy of his presidency. This new airport was set to replace the current airport in Mexico City which is the busiest in Latin America.

The elected president of Mexico AMLO not yet in office in October 2018 stated that the Texcoco airport was a “monument to corruption”⁸⁸ thus, called for a public consultation to decide if the project should continue or not; this was also the first time the government conducted a public consultations to decide on an infrastructure project of this magnitude.⁸⁹ There was no legal basis for this public consult, no electoral authority was involved in the process; the people that voted in this national matter did not reach even 1 million votes (no official data available), and the president that called for this public consultation was not yet in office. If we compare this public consultation to the popular consult established on article 35 of the Mexican Constitution, it is possible to see that the requirements on article 35 are not even fulfilled by this public consult; not even 1% of the electorate was involved in this public consult.

There were two options for the citizenry to decide on the ballot: the first one to build new runways on Santa Lucia Airport (which served as a military base at the time) while improving the conditions of the current airports in Mexico City and Toluca, or the second one to keep the construction of the Texcoco Airport that was started by the previews government.

The public consultation resulted in 69% of the citizenry in favor of the Santa Lucia Airport project and only 29% of the citizenry decided to continue the construction of the airport in Texcoco.⁹⁰

This is interesting in numerous aspects, first because AMLO was openly against the construction of the Texcoco Airport, not only because it was a “monument to corruption”

but because it represented the legacy of EPN presidency; second, the president was elected but was not yet in office; and finally there were no legal basis for conducting such public consultation, the only legal basis was that the president wanted to do it because it was the will of the people. Two months later the government (by this time in office) was cancelling the Texcoco Airport, a project that was already under construction with a total funding of USD13 billion.⁹¹

88 Nájera, “Encuesta aeropuerto: México decide en la consulta del aeropuerto de CDMX convocada por AMLO.”

BBC. 25 October 2018.

89 Ibid.

90 Rosas, T. “Santa Lucía gana con 748 mil votos; Texcoco: 311 mil 132.” Excélsior. 29 October 2018.

91 Navarro, A, Martin, E and Villamil, J. “Mexico's AMLO Scraps $13 Billion Airport Project; Peso Plunges.”

Bloomberg. 29 October 2018.

(20)

20 4.1.2 Thermoelectric Huexca

On February 2019 the first official public consultation was held by the government of AMLO regarding an infrastructure project called Thermoelectric Huexca. The construction of this thermoelectric affected peoples, territories and the environment in three different states in central Mexico named Morelos, Tlaxcala and Puebla, however, the project would bring a lot of jobs and increased the economy of the region.

There were major environmental concerns around the construction of this thermoelectric and the direct impact that this infrastructure project would have to the people of this region, affecting more than 60 municipalities and indigenous communities.

The public consult was held on the 23 and 24 of February of 2019, with a total participation of 55,7115 votes.⁹² Again, the consultation was held without any legal basis, no representation of the national electoral authority, no further information was provided to the citizenry in order to make a reasoned decision, or any other kind of public information was made available to the public; the only information provided was the one the president gave in his mañaneras.⁹³ On the 8 of February of 2019, AMLO said, that the people affected by the construction of the thermoelectric were going to have cheaper tariffs for their electrical consumption and a compensation was going to be available for the damages that the construction would have on their communities, and the project would bring benefits for the region.

The question posted to the citizenry on the ballot was simple: Are you in favor of the construction of the thermoelectric? “Yes” or “No.”⁹⁴

The “yes” won in the public consultation by 59.54%, in comparison to the “no” that was only 40.12% and 0.33 of null votes.⁹⁵

What is interesting about this case is that the government not only conducted the public consultation among the communities where the project was having a direct impact, but the consultation was extended to a wider audience. Many people that were not being affected directly by the project had a vote in the public consult; even if the “yes” won, the data available shows that in most of the communities where the project was having a direct impact the “no” won by majority.⁹⁶ There was a lot of tension during this exercise of direct democracy among the different communities during the whole process. Sadly, this included the murdered of Samir Flores, an environmental activist member of the organization Frente de los Pueblos en Defensa de la Tierra y del Agua (hereinafter “FPDTA”) who was against the construction of the thermoelectric from the beginning of the project.⁹⁷

92 Gobierno de México. Resultados Oficiales Ejercicio Participativo Termoeléctrica de Huexca. 25 February 2019.

93 Mañaneras or Mañanera: A colloquial expression to call his everyday morning press conferences.

94 Gobierno de México. Resultados Oficiales Ejercicio Participativo Termoeléctrica de Huexca. 25 February 2019.

95 Ibid.

96 Ibid.

97 Martín Cullell, J. “Asesinan a un activista mexicano en vísperas de la consulta sobre una termoeléctrica.” El País. 20 February 2019.