THE WIDESPREAD USE OF PUBLIC CONSULTATIONS AND ITS IMPACT ON THE RULE OF LAW AND DEMOCRACY - DIVA
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The widespread use of public
consultations and its impact on the rule
of law and democracy
Its current effects in Mexico
Adolfo Canales Muñoz
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 SchroederTable 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
2Abbreviations
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
3The 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.
4also 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.
5Thus, mechanisms of direct democracy could be seen as a double edge sword especially
when their implementation, not only lead to the tyranny of the majority 16 (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.
61.2 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?
72.1 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.
22
Altman, D. (2017). The Potential of Direct Democracy: A Global Measure (1900–2014). Social Indicators
Research, 133(3), 1207–1227.
23
Harrison, R. (2002). Democracy. London: Routledge.
24
The Colombian Paradox: Peace Processes, Elite Divisions & Popular Plebiscites. (2017). Daedalus, 146(4),
152–166.
8Public 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.
30
Altman, D. (2017). The Potential of Direct Democracy: A Global Measure (1900–2014). Social Indicators
Research, 133(3), 1207–1227.
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.
9This 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.
36
Altman, D. (2017). The Potential of Direct Democracy: A Global Measure (1900–2014). Social Indicators
Research, 133(3), 1207–1227.
10are 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 decide 39 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 19th 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 20th 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.
11So 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.
52
De la Torre, C., & Peruzzotti, E. (2018). Populism in Power: Between Inclusion and Autocracy, Populism,
1(1), 38-58.
53
Godin, C. (2012). What is populism? Cités, 49, 11–26.
54
Ibid.
12consultations 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.
56
De la Torre, C., & Peruzzotti, E. (2018). Populism in Power: Between Inclusion and Autocracy, Populism,
1(1), 38-58.
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.
59
Tamanaha, B. Z. (2004). On the rule of law: history, politics, theory. New York: Cambridge University Press.
60
Ibid.
13long 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.
62
Tamanaha, B. Z. (2004). On the rule of law: history, politics, theory. New York: Cambridge University Press.
63
Waldron, J. (2002). “Is the Rule of Law an Essentially Contested Concept (in Florida)?” Law & Philosophy.
64
Tamanaha, B. Z. (2004). On the rule of law: history, politics, theory. New York: Cambridge University Press.
65
Morlino, L., & Palombella, G. (2010). Rule of law and democracy: inquiries into internal and external issues.
Leiden; Boston: Brill.
66
Tamanaha, B. Z. (2004). On the rule of law: history, politics, theory. New York: Cambridge University Press.
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.
71
Tamanaha, B. Z. (2004). On the rule of law: history, politics, theory. New York: Cambridge University Press.
14procedure 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.
15they 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.
16the 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.
17Regarding 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.
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