At the time of writing this column, the result of the deliberation and vote in the Supreme Court of Justice of the Nation (SCJN) on the constitutionality of the first part of plan B of the electoral reform was still unknown. It was only known that the project of the investigating minister, Alberto Pérez Dayán, proposed to invalidate the changes to the general laws of social communication and administrative responsibilities, for serious violations of the legislative procedure.
A few hours before the session of the highest constitutional court began, the press release of the Legal Counsel of the Presidency of the Republic was made public. Reading it, one thing was clear. If Plan B was declared invalid, it would have to be attributed in part to the incompetence of the office in charge of legally protecting government actions and defending them in court.
A few hours after the session of the SCJN, the Legal Department released a press release in which it invited the ministers to renounce the exercise of their constitutional powers, to forget about jurisdictional precedents and to refrain from reviewing the constitutionality of the legislative procedure, for lacking “popular legitimacy”.
Of course, the message was more political than legal. But because of the tone and the background, it ended up being counterproductive. It was more aimed at delegitimizing the intervention of the SCJN as the body in charge of constitutionality control, than at persuading the ministers with legal arguments.
The statement contrasts with the care with which the argumentation of the examining minister is calibrated, who took pains to give reasons to his peers to declare Plan B unconstitutional. Pérez Dayán needed a qualified majority of eight votes to carry out his project in plenary session of the SCJN. This meant that he not only had to persuade a majority, but also prevent the formation of a minority capable of stopping the full exercise of constitutional control.
The principle of equality before the law obliges judges to faithfully follow precedents and only depart from them for compelling reasons. Equal cases must be judged in the same way. Pérez Dayán’s project is based on various precedents established since 2005 in which the SCJN invalidated norms for serious violations of the legislative procedure, which prevented parliamentary minorities from exercising their rights.
In the doctrine developed by SCJN, representative democracy means much more than majority rule. Deliberation is an indispensable aspect of the legislative decision-making process. In it, they must find cause for the opinions of both majorities and minorities. For this reason, the parliamentary practice known as the “steamroller”, which suppresses the right of minorities to participate in deliberation, can result in the invalidity of the approved norms.
Pérez Dayán’s project left little room for dissent to the ministers of the SCJN. He invoked a precedent from 2022, in which the current composition of the SCJN unanimously declared the invalidity of the reforms and additions to the Federal Telecommunications and Broadcasting Law due to serious violations of the legislative procedure. The irregularities committed by the majority occurred in the Senate, first in the commission stage and then in the plenary session.
In the case of the legislative procedure of plan B of the electoral reform, the violations of the legislative procedure were more serious and systematic. They occurred both in the Chamber of Deputies and in the Senate. In the first, with greater impudence, because without any justification, parliamentary procedures were suspended so that the initiative would be approved the same day it was presented.
*CIDE professor.
Twitter: @BenitoNacif
