Rivera, Mariana Velasco

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Can the Mexican Supreme Court SaveConstitutional Democracy?Mariana Velasco Rivera 2023-05-12T22:20:46The last week of the legislative term in Mexico was just another showcase of theclear government’s disdain for democratic institutions and the rule of law. At theend of April, MORENA, the party in government, used its legislative majorities tohastily pass a series of laws in violation of different procedural rules, includingquorum rules. The reports and footage of the sessions in the two chambers madeit abundantly clear that the legislators didn’t know what they were voting on. In fact,in a gross display of how centralized decision-making is in Mexico, immediatelyafter meeting with President López Obrador, MORENA Senators headed to theSenate’s alternate venue1) to pass 20 pieces of legislation in just a few hours. Justdays before, the same pieces of legislation had been proposed, voted and passedon the same day by MORENA representatives in the Chamber of Deputies withoutobserving the normal course of the legislative process (e.g., publication in thelegislative gazette, legislative committee assessment, and reports) – even withoutletting MORENA members assess them.2)In terms of substance, the adopted legislation is widely varied and, thus, hardto thoroughly assess. The subject matter of the different laws passed includes,among other things, mining, the public health system, further delegation of publicadministration functions to the military, and deep changes to the government agencyin charge of the promotion, support, and development of science and technology(CONACYT).The practical implication of not observing the normal course of the legislativeprocess is that the opposition was effectively excluded from participating in it—e.g.,the opposition didn’t have access to the legislative proposals, the Senators fromthe opposition weren’t present when the pieces of legislation were passed and it’snot clear whether there was quorum to hold the session in the Senate. As such,the opposition is likely to bring a case before the Supreme Court on the groundsof violations of the constitutional principles of deliberative democracy and “duelegislative process”.The episode described above isn’t uncommon in Mexico’s legislative politics. Thequality of the political-constitutional discourse is in great need of improvement toprevent such episodes from happening. It seems that the Supreme Court is theonly institution that could contribute (and has been trying to contribute) to repairit. However, in the current political environment, Supreme Court interventions inpolitical processes are becoming increasingly dangerous to the extent that itssurvival is at stake.- 1 -Of course, from a purely descriptive perspective, one could argue that partydiscipline and cohesion are not alien to constitutional democracy. After all,party systems are part and parcel of a contemporary democratic state. In idealcircumstances, a party voting en bloc to pass legislation addressing publicneeds wouldn’t be problematic. Yet, from a normative perspective, this episodeillustrates the scope, limits and fragility of fundamental tenets such as democraticdeliberation and the separation of powers, which are fundamental to a functioningconstitutional democracy. On paper, the Mexican constitution protects the principlesof democratic deliberation and the separation of powers, yet in practice, legislativeand constitutional decision-making are highly centralized and anything butdeliberative. As I argue here and here, this is a long-standing problem that goesbeyond party lines and is also present when it comes to formal constitutional change.In order to repair it, the quality of political-constitutional discourse would need toimprove dramatically. The question is how?Can the Supreme Court help to improve the qualityof political-constitutional discourse?It seems that the Supreme Court is the only institution that could help improve thepolitical-constitutional discourse by setting clear standards and rules regarding“due legislative processes”. Historically, the Supreme Court has been largelydeferential in terms of violations to procedural rules in the legislative process. Fora long time, legislative provisions would never be struck down due to violationsof procedural rules only. As the political system became more plural (from themid-90s onwards) and political minorities began to bring claims regarding their rightswithin the legislative body, the original deferential approach to procedural violationsbegan to change. Accordingly, a tension between the deferential approach (i.e.,the convalidation of most procedural violations) and the rights of political minoritiesemerged, and the result was a judicial doctrine according to which the former wouldgenerally prevail. However, the doctrine seems to be evolving towards a protectiveapproach in terms of political minorities’ rights.For instance, in August 2022, the Supreme Court unanimously decidedto strike down (in abstract review) a set of amendments to the statute ontelecommunications – Ley Federal de Telecomunicaciones y Radiodifusión–  (Accionde Inconstitucionalidad 150/2017)  exclusively on the grounds of violations ofprocedural rules of the legislative process. That is to say, the court did not engage ina constitutionality assessment regarding the substance of the challenged provisions.Moreover, just this week, in a 9-2 decision, the Supreme Court struck down oneof two parts of what has come to be known as “Plan B” (i.e., the modification andadoption of a total of 6 pieces of legislation through which the government is, amongother things, seeking to undermine the electoral watchdog) on the grounds ofviolations of procedural rules of the legislative process only. In the view of the Court,such violations amounted to a breach of the constitutional principles of deliberativedemocracy and due legislative process. The Supreme Court is set to adjudicate thesecond part of the “Plan B” in the coming weeks, which will almost certainly sufferthe same fate as the first part since the laws in question were passed in the same- 2 -legislative process that the Court determined violated the principles of deliberativedemocracy and due legislative process.In light of these court decisions, the reader could reasonably assume that, ifconstitutionally challenged, this will also be the fate of the 20 pieces of legislationpassed in gross violation of the legislative process last April. In light of RosalindDixon’s model of responsive judicial review, one could also even conclude thatthis is a case that could illustrate how courts in fact have the power to protect andenhance democracy. Though reasonable, this would be a mistaken assumption andconclusion. The Supreme Court, I am afraid, is far from being in a good positionto create the right incentives for legislators to refrain from violating legislativeprocedure rules and improve the quality of the political-constitutional discourse inthe legislative body. Instead, as a result of this week’s decision, at the time of writingthe Supreme Court and the judiciary is being subject to a new wave of attacks of anunprecedented scale.The existential threat against the Supreme CourtAs I argue here, attacking the judiciary has become a regular feature in PresidentLópez Obrador’s daily press conferences –which, at the same time, has alreadytranslated into worrying forms of protest against the judiciary, in particular againstChief Justice Norma Piña. Unsurprisingly, this week’s decision translated into a newwave of attacks against the Supreme Court and the judiciary. But this time around isdifferent: the attack is an existential threat.A day after the decision of the Court on the “Plan B” was handed down, PresidentLópez Obrador announced a clear objective for the general election in 2024 inhis daily press conference: get a qualified majority in Congress to amend theconstitution to overhaul the judiciary and replace all sitting Justices and judges forpopularly elected ones. The idea found resonance in the members of his party inCongress as well as governors, who have publicly endorsed it. In a matter of hours,abolishing the court as it exists today became an electoral promise. Legislators,governors, and MORENA sympathizers are openly calling for votes to amass therequired qualified majority in Congress in order to be able to amend the Constitutionto fulfill such a promise (MORENA controls more than half of state legislaturesalready).Unfortunately, things will only get worse for the Supreme Court as it is set toadjudicate the second part of the “Plan B” in the coming weeks, which as notedabove will most certainly be struck down exclusively on the grounds of violationsof legislative procedure rules. In this context, while the Supreme Court could strikedown the 20 pieces of legislation that were illegally adopted last April if they were tobe challenged, the cost of doing so could be too high as such a decision will certainlyfurther escalate the current attacks and threats. At this stage, the Supreme Courthas little room for maneuvering to avoid an immediate escalation of attacks, i.e. it isconstitutionally required to adjudicate on the second part of the “Plan B” in the nexttwo months (before the general election process officially starts). If the 20 pieces oflegislation passed last month are challenged before the Supreme Court, an eventual- 3 -declaration of unconstitutionality will certainly give the government more ammunitionto justify the need to abolish it. Only time will tell whether the Supreme Court willmake it through the storm.References• The legislative session couldn’t take place in the regular venue because thingsturned confrontational in the Senate as MORENA Senators refused to followthrough with the political agreement to fill a vacancy at the federal agency fortransparency and access to information –Instituto Nacional de Acceso a laInformación (INAI)–which has been blocking for over a year. The moment whenit was clear that MORENA wouldn’t follow through with the agreement, theopposition decided to occupy the Senate’s floor to prevent the session fromtaking place.• Two of the 20 legislative measures were in fact constitutional amendments.The constitutional amendments proposals, however, were not presented andvoted on the same day as the rest of the legislative measures in the Chamberof Deputies. In this post, I will refer to the total 20 pieces of legislation eventhough the passage of the constitutional amendment would require a separatediscussion as to how would they be impacted should the Supreme Courtdetermines the legislative process unconstitutional in whole or in part.- 4 -

Can the Mexican Supreme Court Save Constitutional Democracy?

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Can the Mexican Supreme Court Save Constitutional Democracy?

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