The danger of official tyranny

“We won, whether you want to or not,” said Lilia Aguilar, a representative from the Labor Party in Chihuahua. With these words, pronounced with haughtiness and disdain by the opposition, she defended the right of Morena, the Green Party and her own party, which together make up the so-called official bloc, to change the electoral legislation.

No one questions the right of the majority to amend existing laws or pass new laws. However, the ruling bloc is obliged to exercise this power within the limits established by the Constitution. Otherwise, it becomes a tyrannical majority, ruling above the law and disregarding the rights of minorities.

Herein lies the main problem with the legislative mess, known as Plan B of the electoral reform, which the pro-government majority voted in haste and without due deliberation, in an act of blind loyalty to President López Obrador. The initiative, whose final approval was suspended due to last-minute changes in the Chamber of Deputies, is riddled with unconstitutionality.

Indeed, a significant portion of the new electoral provisions directly contradicts the Constitution or contravenes it indirectly, by violating jurisprudence issued by the Supreme Court of Justice of the Nation (SCJN) or the Electoral Tribunal of the Judicial Power of the Federation (TEPJF). ), in exercise of its faculties to interpret the Magna Carta.

However, one of the most worrying parts of Plan B are the new provisions that deprive guarantees so that, at the request of the affected party, the Electoral Tribunal initiates the review of the constitutionality of the approved initiative.

In effect, article 217 of the Organic Law of the Judiciary of the Federation proposed by President López Obrador limits the authority of the Electoral Tribunal, by preventing it from hearing challenges to the constitutionality of electoral legislation, when the matters are also subject to resolution of the SCJN.

The measure has a crude and factious political calculation. If the opposition challenges Plan B of the electoral reform through the unconstitutionality action or the INE through the constitutional controversy, the Electoral Tribunal must declare any means of challenge presented inadmissible.

Thus, the pro-government bloc seeks to set aside the Electoral Tribunal, where a majority –which does not control– can declare the inapplicability of new provisions contrary to the Constitution. His intention is that constitutionality be resolved only in the SCJN. Betting on the vote of four ministers loyal to President López Obrador, which would be enough to avoid the total or partial nullity of his electoral reform.

However, prohibiting the Electoral Tribunal from hearing challenges in matters subject to resolution by the SCJN violates the Constitution. It constitutes a regressive legal change, which arbitrarily restricts the right of access to justice. It is equivalent to preventing district judges or collegiate courts from hearing amparo proceedings against acts whose constitutionality is under review before the SCJN.

Likewise, it violates Article 98 of the Constitution, which authorizes the Electoral Tribunal to resolve the inapplicability of unconstitutional electoral laws. Right there, the Magna Carta clarifies that this attribution can be exercised even if the SCJN hears of the same issues through constitutional controversy or unconstitutionality action.

The approval of Plan B of the electoral reform represents a systematic and malicious abuse of power on the part of the ruling majority. The SCJN and the TEPJF will have the enormous responsibility of correcting it and asserting the supremacy of the Constitution. It is in their hands to prevent democracy from becoming a mere tyranny of the majority.

*CIDE professor.

Twitter: @BenitoNacif