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

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

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

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

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.

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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.

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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?

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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 Arnason, 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.

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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. 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.

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. 36 Altman, D. (2017). The Potential of Direct Democracy: A Global Measure (1900–2014). Social Indicators

Research, 133(3), 1207–1227.

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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 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.

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. 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.

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. 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.

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. 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.

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

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

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

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

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.

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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.

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4.1.3 Mayan Train

The Mayan train is the biggest infrastructure project that AMLO proposed for his term in

office. The project will impact five southern Mexican states, named, Yucatán, Quintana

Roo, Chiapas, Tabasco y Campeche. This ambitious infrastructure project aims to develop

and activate the economy of this southern region that historically has been one of the poorest

in the country. This region is also home of the president, as he has put it multiple times

“esta es mi agua;”98 this is my water. This region is also the place where many of the

electorate that follows AMLO lives in and where his popularity continues to grow.

The public consult held by the government for the Mayan Train was unique, on one hand

there were numerous indigenous communities directly affected by this construction of this

project, and on the other hand there were many people outside these indigenous

communities that were also affected by the project, therefore, the government decided to

implement a “mix public consult” were they implemented the rules established on article 6

of the Convention 169, and at the same time they implemented the public consultations

rules (nonexistent) used in the Texcoco airport consult for non-indigenous communities.

This rare mixture meant in grosso modo that half of this public consultation lacked legal

basis and the overall guidelines for its celebration were almost null.

The public consult was held on the 15 of December 2019, with a total participation of

100,940 votes.99 There was no substantial information provided to the citizenry or the

indigenous peoples regarding the impact that this project would have on their communities.

There was no relevant information of the Environmental Impact Assessment that this

project would have on the region. Overall, the information provided for the public

consultation was minimum.

It is worth noting that on a press release five days later after the public consultation was

held, the United Nations through the Office of the High Commissioner for Human Rights

in Mexico (hereinafter “OHCHR Mexico”) issued an official statement criticizing the public

consultation and the method used to decide if the construction of the Mayan Train should

take place.100 The statement focused on the lack of compliance with the international

standards established in article 6 of the Convention 169 and article 19 of the United Nations

Declaration on the Rights of Indigenous Peoples (hereinafter “UNDRIP”).101 The OHCHR

Mexico also expressed concerns on the lack of information regarding the negative impact

that this project would have; the information provided by the government mostly informed

the society on the benefits that this project would bring to the region; wealth and tourism,102

and there were no information regarding the disadvantages surrounding this project; a

modus operandi of the government to only highlight the benefits, something it is possible

to see as well in the previews official public consultations. Finally, the OHCHR Mexico

expressed an overall worrisome regarding the unilateral way of making decisions by the

government which was reflected in the public consult process where no agreement was

98 Redacción. “‘Esta es mi tierra, mi agua’: AMLO.” Diario Presente. 23 September 2019. 99 Gobierno de México. Resultados Oficiales Ejercicio Participativo Tren Maya. 16 December 2019. 100 Martín Cullell, Jon. “La ONU critica la parcialidad de la consulta sobre el Tren Maya, el proyecto estrella de

López Obrador.” El País. 21 December 2019. 101 Ibid. 102 UNHCR-Official Statement. “El proceso de consulta indígena sobre el Tren Maya no ha cumplido con todos

los estándares internacionales de derechos humanos en la materia: ONU-DH.” 19 December 2019.

22

reached with the indigenous communities prior to the celebration of the public

consultation.103

The question posted to the citizenry on the ballot was simple as well: Are you in favor of

the construction of the Mayan Train? “Yes” or “No.”104

The “yes” won in the public consultation by 92.27%, in comparison to the “no” that was

only 7.45% and 0.28% of null votes.105 The influence that the president had during this

public consultation was very visible; the day after on the 16 of December of 2019, in his

mañanera AMLO expressed that the outcome of the public consult was predictable, and

that those who voted for the “no” were envious and petty.106

Is worth mentioning that only 68.40% of the indigenous communities that were affected by

the construction of the Mayan Train were part of the public consultation.107 This fact is

relevant for the paper because it shows that this form of direct democracy not only lacks

legal basis and enforcement for its correct implementation, but it shows that this mechanism

of direct democracy is not a widely effective tool to encourage a more active participation

of the people.

4.1.4 Constellation Brands

The latest official case of a public consult conducted by the Mexican government was

regarding the construction of a brewery by Constellation Brands in northern Mexico. The

U.S. company was building a massive industrial plant in the city of Mexicali in the state of

Baja California worth more than USD1 billion.108

The construction of the brewery was surrounded by tension among different local groups

and activist movements from the beginning, the reason behind this was for the fear that the

brewery would bring a water shortage to the region; a region that is already one of the driest

in the country.109

In 2018 in the presidential election, the activist lead movement “Mexicali Resiste”

approached AMLO to denounce the construction of the brewery and what the company was

going to do to the water of the region, ever since, AMLO has been a big critic towards the

construction of the brewery in Mexicali.110 The company has argued that all the permits for

the construction of the project and the usage of water were given by the official state and

national authorities including the National Water Commission (hereinafter “NWC”) who

is the national authority in charge to administer, regulate, control and protect the national

waters in the nation, a commission part of the Secretariat of Environment and Natural

103 Ibid. 104 Gobierno de México. Resultados Oficiales Ejercicio Participativo Tren Maya. 16 December 2019. 105 Ibid. 106 Varillas, A., Rodríguez Y., and Pérez L. “Dan resultados hoy de consulta sobre Tren Maya.” El Universal. 16

December 2019. 107 Gobierno de México. Consulta Libre, Previa e Informada sobre el Proyecto de Desarrollo Tren Maya.

Presentación de Resultados. 16 December 2019. 108 Solomon, B. D. and Gonzalez, A. “Public will decide whether Constellation brewery opens in Mexico,

president says.” Reuters. 03 March 2020. 109 Zaragoza, A. “As Big Beer Moves In, Activists in Mexicali Fight To Keep Their Water.” National Public

Radio. 26 March 2018. 110 Juárez, A. “Constellation Brands tiene a México contra la pared, gracias al TLCAN.” EL CEO. 26 March 2020.

23

Resources in Mexico (hereinafter “SENRM”). The company also released an official

statement arguing that the company will continue to work in Mexico, however, the kind of

investments remain to be considered after what happened to the project in Mexicali.111

The public consult was held on the 21 and 22 of March 2020 with a total participation of

36, 781 votes.112 Again, the consultation was held without any legal basis, no representation

of the national electoral authority, and with a major influence of the president on the people.

It is important to mention that the number of people that voted in this public consultation

represented only 3.51% of the electorate in the state of Baja California.113

The questions posted in this public consultation were not as simple as the ones in the

Thermoelectric Huexca or the Mayan Train. In this consult there were two options that read

as follow: You agree that Constellation Brands completes the brewery because they have

already invested and this project will create jobs, without affecting the population’s water

supply or You not agree that Constellation Brands completes the brewery because you do

not want the water to be used for this type of industries.114

The “not agree” option to complete the brewery won in the public consultation by 76.05%,

in comparison to the “agree” option that was only 23.24% and 0.71% of null votes.115

This case is the most significant for our research, First, because is the first time that the

president in his mañaneras refers to the use of this public consultations as creators of

precedents. AMLO even said that “people often say: this public consultation will set a bad

precedent, because it will impact investments.’ No, the bad precedent was already set when,

without taking people into account, the authorities gave out the permits to this company.”116

This is alarming, because in a country where this mechanism of direct democracy with no

legal or constitutional basis, a precedent is being created just by the word of the president.

The second reason why this case is important, is because it was the first time that National

Human Rights Commission in Mexico (hereinafter “NHRC”) issued a recommendation

regarding the use of public consults. The NHRC issued the recommendation 01/2020117 to

the federal government in respect to the usage of mechanisms of direct democracy to decide

on human rights issues, as in this case the construction of the brewery was connected

directly to the right to water. In the recommendation the NHRC stated that “the consultation

does not proceed because human rights are inalienable, not subject to consultation and

voting; rights are respected not voted.”118

111 Constellations Brands. Constellation Brands reinforces strength of its brewery production footprint in Mexico.

Press releases. 24 March 2020. 112 Gobierno de México. Resultados Oficiales Ejercicio Participativo Planta Cervecera Mexicali. 23 March 2020. 113 Espinosa Silis, A. “Consultas, certezas e inversión.” Expansión Política. 24 March 2020. 114 Gobierno de México. Resultados Oficiales Ejercicio Participativo Planta Cervecera Mexicali. 23 March 2020. 115 Ibid. 116 Solomon, B. D. and Gonzalez, A. “Public will decide whether Constellation brewery opens in Mexico,

president says.” Reuters. 03 March 2020. 117 Comisión Nacional de Derechos Humanos. Recomendación No. 1/2020 Sobre las violaciones al derecho

humano del agua en perjuicio de la población en general y agricultores del Valle de Mexicali, derivadas de

actos y omisiones en diversos trámites y procedimientos para la instalación y operación de un proyecto

industrial de cerveza en el municipio de Mexicali. 06 February 2020. 118 Comisión Nacional de Derechos Humanos. Exhorta Presidenta de la CNDH a Titular de la CONAGUA y

Gobernador de Baja California atender la Recomendación 1/2020, ante la inoportuna propuesta del Secretario

de la SEMARNAT para decidir en consulta pública la instalación de una planta cervecera en Mexicali, Baja

California. 05 March 2020.

24

The result of the public consultations ended up with the cancellation of the brewery in

Mexicali, and the president removing unilaterally the faculties of the National Water

Commission to give further permits for water usage for this project to the U.S. company,

along with a compensation settlement that remains to be determine with Constellation

Brands for damages.119

5. Conclusion

Direct democracy is good for democracy; as it was an inherent part of the polis in Ancient

Greece, people should be interested in how their countries are conducted, and have an active

participation, not only by dictating their representatives what to do, but also the people must

be active to defend the status quo of their nation from predatory governments. An active

and informed citizenry is what democracies around the world need today.

Mechanisms of direct democracy are useful resources for the people to have their voice

heard; however, the lack of data on how and what is the real impact of these mechanism to

democracy remains unclear despite the increased usage of these mechanisms around the

world. When it comes to the implementation and use of mechanisms of direct democracy,

the first step should be to follow what is established in the laws of the country regarding

these mechanisms, as they may vary from country to country, not only in the way they are

used, but even in the different names, forms and sometimes meanings they may have.

Mechanisms of direct democracy that are well established in the constitutional body (i.e.

constitutional referendums) usually work as a safeguard for the people against enacted laws

and as a restraint for governments. In my opinion following this legality perspective is the

purest and more effective way to understand mechanisms of direct democracy, because on

one hand they give people a voice, and on the other hand they work as a shield against laws

and policies that may affect the people and the nation; a safeguard with a constitutional

legal basis. Thus, as a part of a constitutional body of a nation, mechanisms of direct

democracy gain substance, rules and procedures clearly delimited and established in the

laws that at the end of the day will reinforce the predictability, certainty and security that

democracy is so longing. The constitutional body as a whole works as the foundation for

the rule of law, which is essential for democracy today, but also for the wealth being of a

nation; when the laws work, and they work equally for everybody; citizens and government

alike, then the rule of law will strengthen. These elements mutually reinforce each other,

and the outcome is a nation with a strong rule of law and a stable democracy.

When it comes to mechanisms of direct democracy that lack any legal basis for its

implementation just like the public consultations analyzed in the Mexican case, multiple

doubts may rise regarding the benefits of these mechanism to the rule of law and democracy

itself. Without a legal basis and a clear procedure, mechanisms of direct democracy could

work interchangeably as safeguards for the people, but also, they could bring further

powers, sometimes unwanted to a citizenry that may not be prepared to use them. Powers

to decide on a variety of issues, from public policy to infrastructure projects for a citizenry

without experience or preparedness to make a reasoned decision, that in a normal scenario

should correspond to the government to make. The problem with these mechanisms as

presented in the Mexican case has to do with the lack of legal basis, and an established

procedure for its correct implementation, this may be tricky for the citizenry as well as for

119 Espinosa Silis, A. “El 3.51% del padrón electoral de Mexicali detuvo una inversión de 1,500 mdd.” Expansión

Política. 23 March 2020.

25

the government itself. This could end up affecting the rule of law and the democracy in a

nation.

As I have mentioned throughout this paper, experience matter when it comes to the

implementation of mechanisms of direct democracy; the experience of the people in

Switzerland regarding the use of referendums may not be the same as the experience of the

people in Mexico with regards public consultations. This is neither good or bad, these are

just different experiences and thus these mechanisms cannot be transplanted from one place

to another, many factors must be considered for their correct implementation. In my opinion

this is extremely important, because in countries with little experience regarding the use of

mechanisms of direct democracy like Mexico, if poorly implemented these mechanisms

could end up working for the benefit of the government, instead of people. Where populist

governments are in power, the constant use of mechanisms of direct democracy such as

pubic consultations may be the best tool to legitimize their government, and gain the support

of the people, in some cases, they could even been used to gain an extra mandate from the

people that may be unconstitutional, the only reasoning behind this, the only requirement

is: the will of the people.

The Mexican case in my opinion is very relevant for direct democracy, because as it was

possible to analyzed, public consultations are being held to decide on a variety of very

important and controversial issues. The lack of requirements, uniformity, and a clear

procedure in the constant implementation of public consultations in Mexico allow us to see

that far from being a tool to further encourage a more active participation of the citizenry,

these public consultations are becoming more like the fast way to decide on public matters,

and make decisions that the government or the president are not willing to take with the sole

argument of the will of the people.

With the arrival of a “popular” government with a charismatic leader like AMLO that has

the support of the masses, and a lot of influence on the people, the indistinctly use of

mechanisms of direct democracy like public consultations not only to define public policies

but to decide on national and regional issues from infrastructure projects to environmental

matters or even human rights probably will not bring long term benefits for the rule of law

in the country; on the contrary the constant use of mechanisms of direct democracy with no

legal or constitutional basis could be the downfall of the rule of law and democracy in

Mexico. When populist governments know that the people support them, then they can

circumvent the rule of law, the constitutional framework and ultimately democracy itself;

because their power, their legitimization to act is given directly by the people.

Public consultations as a mechanism of direct democracy should not be used as a further

tool for populist governments to legitimize their actions when they are unconstitutional or

lack legal basis just because they have the support of the people and they can influence

people’s minds or simply because it’s the people’s will. In my opinion this erroneous

understanding of mechanisms of direct democracy and direct democracy without the proper

legal and constitutional venues to act will damage in the long term the rule of law and

democracy. Mechanisms of direct democracy should work as an effective safeguard, a

protective shield for the citizenry against predatory governments; a mechanism that finds

its meaning in the constitutional framework, a mechanism that strengthen the rule of law

and protects democracy.

26

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29

Appendix

1. C169-Indegenous and Tribal Peoples Convention, 1989 (No.169):

Article 6 1. In applying the provisions of this Convention, governments shall:

(a) consult the peoples concerned, through appropriate procedures and in particular through

their representative institutions, whenever consideration is being given to legislative or

administrative measures which may affect them directly;

(b) establish means by which these peoples can freely participate, to at least the same extent

as other sectors of the population, at all levels of decision-making in elective institutions

and administrative and other bodies responsible for policies and programs which concern

them;

(c) establish means for the full development of these peoples' own institutions and

initiatives, and in appropriate cases provide the resources necessary for this purpose.

2. The consultations carried out in application of this Convention shall be undertaken, in

good faith and in a form appropriate to the circumstances, with the objective of achieving

agreement or consent to the proposed measures.

2. The General Law of Ecological Balance and Environmental Protection:

Article 34 Once the Secretariat receives an environmental impact statement and integrates the file

referred to in article 35, will make it available to the public, so that it can be consulted by

anyone.

The promoters of the work or activity may require that the information be kept confidential

that has been integrated into the file and that, if made public, could affect property rights

industrial, and the confidentiality of commercial information provided by the interested

party.

The Secretariat, at the request of any person from the community in question, may carry out

a public consultation, according to the following bases:

I.- The Secretariat will publish the request for authorization regarding environmental impact

in its Gazette Ecological. Likewise, the promoter must publish, at his expense, an extract of

the project of the work or activity in a newspaper with wide circulation in the federal entity

in question, within the period five days from the date the environmental impact statement

is submitted to the Secretary;

II.- Any citizen, within a period of ten days from the publication of the extract of the project

in the aforementioned terms, may request the Secretariat to make available to the public in

the corresponding federal entity, the manifestation of environmental impact;

III.- In the case of works or activities that may generate serious ecological imbalances or

damage to public health or ecosystems, in accordance with the provisions of the regulations

of the this Law, the Secretariat, in coordination with local authorities, may organize a

meeting public information in which the promoter will explain the technical environmental

aspects of the work or activity in question;

IV.- Any interested party, within a period of twenty days from the date the Secretary sets

available to the public the manifestation of environmental impact under the terms of section

I, may propose the establishment of additional prevention and mitigation measures, as well

as observations that it considers pertinent, and

V.- The Secretariat will add the observations made by the interested parties to the respective

file and It shall record, in the resolution it issues, the public consultation process carried

out and the results of the observations and proposals that have been made in writing

(Personal Translation).

30

3. Mexican Constitution: Article 35 Fraction VIII

The rights of citizenship are:

VIII. Vote in popular consultations on issues of national importance, which will be subject

to the following:

1. They will be convened by the Congress of the Union at the request of:

a) The President of the Republic;

b) The equivalent of thirty-three percent of the members of any of the Houses of Congress

of the Union; or

c) Citizens, in an equivalent number, at least, two percent of those registered in the nominal

list of voters, under the terms determined by law.

In the case of popular consultations on issues of regional importance competence of the

Federation, the citizens of one or more states, in a number equivalent to at least two percent

of those registered on the nominal list of voters of the corresponding state entity or states,

in the terms determined by law.

With the exception of the hypotheses provided in subsection c) above, the request must be

approved by the majority of each Chamber of the Congress of the Union;

2. When the total participation corresponds, at least, to forty percent of the citizens

registered in the nominal list of voters, the result will be binding for the federal Executive

and Legislative powers and for the competent authorities;

3. The restriction of human rights may not be the object of popular consultation recognized

by this Constitution and in international treaties of which the State Mexican is a party, nor

the guarantees for its protection; the principles enshrined in the article 40 thereof; the

permanence or continuity in the position of public servants popular choice; the electoral

matter; the financial system, income, expenses and Federation Expenditure Budget;

infrastructure works in progress; the national security and the organization, operation and

discipline of the Armed Forces permanent. The Supreme Court of Justice of the Nation will

resolve, prior to the summons that the Congress of the Union carry out, on the

constitutionality of the matter of the consultation;

4. The National Electoral Institute will be directly responsible for verifying the requirement

established in subsection c) of section 1. of this section, as well as the organization,

dissemination, development, computation and declaration of results.

The Institute will promote the participation of citizens in popular consultations and will

be the sole instance in charge of disseminating them. The promotion must be impartial, and

no way can be directed to influence the preferences of the citizenship, but It should focus

on promoting informed discussion and reflection by citizens.

No other natural or legal person, whether in his own name or on behalf of third parties, may

hiring propaganda on radio and television aimed at influencing the opinion of citizens about

popular consultations.

During the time included in the popular consultation process, from the summons and until

the conclusion of the conference, the broadcasting in the media of communication of all

government propaganda of any order of government, except those whose purpose is to

disseminate information campaigns from the authorities electoral, those related to

educational and health services, or those necessary for the civil protection in cases of

emergency;

5. The popular consultations called under this section, will be held the first Sunday of

August;

6. The resolutions of the National Electoral Institute may be challenged in the terms of

the provisions of section VI of article 41, as well as section III of article 99 of this

Constitution; and

7. The laws will establish what is conducive to enforce the provisions of this fraction

(Personal translation).