The SCJN must deny the constitutionality of the consultation proposed by AMLO

The seventh and most recent amendment to Article 35 of the Constitution was finally approved by the Chamber of Deputies on November 5, 2019 and sent to local legislatures for their approval. On November 28, it was definitively approved, sending the corresponding decree to President Andrés Manuel López Obrador, who published it in the Official Gazette of the Federation on December 20. The reform entered into force the following day.

It is important to highlight that all the federal and local senators and deputies of Morena, PES, PT and PVEM voted in favor of this reform, together with a good number of PRI members, PRD members and emecistas. On all occasions the PAN legislators voted against.

Among what was reformed was Section 3 of Section VIII of 1935, which remained as follows: “The restriction of human rights recognized by this Constitution and in international treaties to which the Mexican State is a party may not be subject to popular consultation, nor the guarantees for their protection; the principles enshrined in Article 40 thereof; the permanence or continuity in the position of the public servants of popular election; electoral matter; the financial system, income, expenses and the Expenditure Budget of the Federation; infrastructure works in progress; national security and the organization, operation and discipline of the permanent Armed Forces. The Supreme Court of Justice of the Nation will resolve, prior to the call made by the Congress of the Union, on the constitutionality of the matter of the consultation.

Based on the foregoing, can the election by popular vote “of the judges, magistrates and ministers that are part of the Judiciary” be the subject of popular consultation, as proposed by President Andrés Manuel López Obrador and his followers?

No, according to the constitutionalist Luis Miguel Rodríguez Alemán, who comments the following: “A popular consultation that seeks to consult the people of Mexico about the way in which the members of one of the powers of the Union are elected should be considered as electoral matter and therefore, it would be included in the list of prohibitions provided for in the Constitution. In this regard, the Supreme Court of Justice of the Nation, when resolving constitutional controversy 114/2006, indicated that direct electoral matters should be understood as: ‘[…] the one associated with the set of rules and procedures related to the integration of public powers through the citizen vote, governed by specialized regulations, and challengeable in an also specialized institutional context’”.

Rodríguez Alemán concludes that “it is up to the Supreme Court to hear and resolve the review of the constitutionality of the matter of the popular consultation (…) If the constitutionality of the consultation is denied, its members would be attacked under the narrative of preventing citizen participation. If the consultation is validated, they would enter a process of public questioning about the legitimacy of the current selection method.

Regardless of the consequences, the Court must deny the constitutionality of the consultation proposed by AMLO, whose sole purpose is to end the independence of the Judiciary to submit it again to the Executive.

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