—Mariana Velasco-Rivera, National University of Ireland Maynooth, School of Law and Criminology; Co-Editor, IACL Blog. Twitter: @marisconsin.
[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]
In my recent column ‘When Judges Threaten Constitutional Governance: Evidence from Mexico’, I discussed a Supreme Court high-profile case (Acción de Inconstitucionalidad 64/2021) in which the constitutionality of a set of amendments to the Ley de la Industria Eléctrica (LIE—electricity industry statute) was challenged. The amendments sought to roll back former President Peña Nieto’s energy policy (introduced as a constitutional amendment in 2013 to open the energy industry to the private sector). Among other things, the amendments to the LIE privilege the energy state-owned company (CFE) in the provision of basic energy services (regardless of price and source) and at the same time limits the role of clean energy companies in the market (art 4 § VI and 26).
As explained in my column, in short, the claimants (a group of forty-eight Senators) made two arguments of unconstitutionality. On the one hand, they argued that the provisions breached the constitutional right to a healthy environment (medio ambiente sano); and, on the other hand, that they violated constitutional antitrust and free-market principles (competencia económica). Six Justices agreed with both arguments. Two additional Justices also determined that the provisions were unconstitutional, but only agreed with one of the two arguments brought forward by the claimants. Justice Alfredo Gutiérrez Ortiz Mena considered the articles violated the right to a healthy environment while Justice Juan Luis González Alcántara considered that the articles were unconstitutional for violating the principles of antitrust and free market.
My previous column also explained that even though a total of eight justices determined that the articles were unconstitutional (therefore meeting the constitutional threshold to invalidate legislation), the provisions were not struck down. Why? Because instead of counting votes regardless of the reasons behind them (according to the usual practice), Chief Justice Arturo Zaldívar inexplicably claimed that in order to strike down legislation in abstract review the constitution required that the reasons to cast a vote for the unconstitutionality of a given article should be the same (see page 119 of the session transcript ). In other words, the rule to count votes in order to invalidate legislation was modified. I considered that such a situation set a dangerous precedent in terms of constitutional governance for going against well-established procedural rules, and because, should this become the norm, it would weaken the mechanism of abstract judicial review as a checking mechanism by effectively making it more difficult to invalidate legislation.
Dr. Roberto Niembro wrote a response to my column where he claims that I omitted relevant facts that would prevent the reader from seeing the whole picture. In essence, he claims that what actually happened is that a “collective doubt” about how to count votes in order to invalidate legislation arose during the session which, in turn, was solved when Justice González Alcántara said “[m]y vote here is for the validity” (i.e. he switched his vote from invalidating the provisions in question to validating them) (see page 123 of the transcript). Dr. Niembro then turns to argue that the issue we should be questioning is the fact that Supreme Court deliberations in Mexico are televised. Finally, he argues that by asking whether the case I described could be understood as abusive judicial review, I engage in a “problematic use of constitutional categories which are intended to denounce other types of phenomena.”
In what follows I refute Dr. Niembro’s “collective doubt” account and show that the eight-vote threshold to invalidate was in fact met, address his point about the broadcast of live Supreme Court proceedings, and respond to his objections about what he considers a problematic use of constitutional categories.
On the “collective doubt” on how to count votes to invalidate legislation and the vote switch
After reading Dr. Niembro’s account, the unfamiliar reader might think that the alleged “collective doubt” on how to count votes was solved after Justice González Alcántara said: “my vote here is for the validity”. This would be right if Justice González Alcántara had indeed changed his vote during the discussion. However, as it will be seen, there was neither a “collective doubt” nor did Justice González Alcántara switch his vote.
First, regarding the “collective doubt” on how to count votes, it must be stressed that Chief Justice Zaldívar was the only Justice that expressed the view that the reasons behind the votes had to be identical in order to invalidate legislation (see pages 119 and 120 of the transcript). The rest of the Justices who voiced an opinion on this regard didn’t seem to have any doubt about the matter. Justices Aguilar, Pardo, Piña, Pérez Dayán and, Laynez intervened to say that in order to invalidate legislation votes should be counted regardless of the reasons behind them (see pages 120, 118, 121, 122 and, 124 respectively). Consider, for example, the following exchange between Justice Aguilar and the Chief Justice:
“(…) but to invalidate legislation, it is provided that it eight votes are enough. It could be the case that a provision is invalidated and that the reasoning is not binding [for lower courts] for not being uniform, but I think these are two things that are independent from each other (…)” (p. 120).
To which Chief Justice Zaldívar replied:
“Yes, that is why I think that it is the Justices [Gutiérrez and González Alcántara] who have to say how they want their votes to be counted, if you agree.” (p. 120).
To which Justice Aguilar replied:
“But if they are voting for invalidating the provisions, even if it is for different reasons, they are voting for invalidating.” (p. 120).
In this context, it is unclear to me how exactly one could argue there was a collective doubt as to how votes should be counted: five out of the six Justices who voiced an opinion on this point agreed votes should be counted regardless of the reasons behind them. (And this is without counting Justice Gutiérrez, who also suggested that counting votes regardless of the reasons behind them was part of the day-to-day work of the court, see page 123 of the transcript).
Even assuming that there was a “collective doubt” about how to count the votes (which is a big assumption given that the five judges who referred to the issue unanimously expressed that votes should be counted as they had always been counted, that is, independently of the reasons behind them), it is very odd to leave the final decision about how to proceed with the counting to only two of members of the collegiate body (i.e. the judges who had given different reasons for the invalidity of the provisions) as opposed to asking the entire court.
Now, from the available evidence, it is clear that Justice González Alcántara didn’t change his stance regarding the unconstitutionality of articles 4 § VI and 26, which means that the eight-vote constitutional threshold to invalidate was, in fact, met. From the session transcript, a clarifying opinion and, most recently, his dissenting and concurring opinion in this case, it is clear that when Justice González Alcántara replied “my vote here is for the validity” (see page 123 of the transcript), after being pressed by the Chief Justice to clarify how their vote should be counted, he was referring to the argument regarding the right to a healthy environment. If the Chief Justice’s doubt about how to count votes was genuine, it is unclear why everything that happened after Justice González Alcántara replied “my vote here is for the validity” was ignored.
Dr. Niembro notes that towards the end of the session, when the relevant court officer (Secretario General de Acuerdos) read through the voting record “it was clear that only seven votes had been reached” (emphasis added) and that no Justice expressed their “disagreement stating that his votes had been incorrectly counted”. But this account doesn’t show the whole picture: just moments after Justice González Alcántara said “here my vote is for the validity” and right before the Secretario General de Acuerdos read the voting record, Justice González Alcántara reiterated his position regarding the unconstitutionality of articles art 4 § VI and 26 for breaching the constitutional principles of antitrust and free market (see page 146 of the transcript).
Moreover, Dr. Niembro points out that in both the private and public sessions held on 19 April the Justices “discussed” the voting record again—suggesting that there was no disagreement regarding the final count of the vote. The sessions Dr. Niembro refers to are pro forma proceedings to approve the certificates attesting to the adjudication of cases in a previous session. In other words, the outcome of the decision couldn’t be changed at that stage. What is more, if everyone agreed with how votes were counted, it is unclear why Justice González Alcántara deemed it necessary to pen a clarifying opinion (to be added to the certification –an unusual practice when it comes to these pro forma proceedings) where it becomes clear that when he said “my vote here is for the validity”, he was referring to the argument concerning the right to a healthy environment and reiterates his stance regarding the unconstitutionality of the provisions at hand (Dr. Niembro also cites this opinion in his response but doesn’t address this particular point). In Justice González Alcántara’s words:
“The vote in section C [regarding the argument on the right to a healthy environment] didn’t change my stance regarding the unconstitutionality of articles 3, § V, 4, § VI, 26 and 53 for going against the antitrust regime as provided in the Constitution which, in fact, I explicitly reiterated in sections F and G.” (pg. 2 par. 8) (emphasis added)
In addition to this clear statement that his stance was for the unconstitutionality of the challenged provisions all along, most recently Justice González Alcántara reiterated his position in his dissenting and concurring opinion and explained in substance why he considered that the challenged provisions breached the constitutional principles of antitrust and free market but not the right to a healthy environment.[1]
Dr. Niembro claims that his account allows him to “cast doubt on the thesis that there was a change in the voting rules and that this was a towering judge ’threatening constitutional governance.’” However, in light of the above, the question is rather simple: if the rule to counting votes to invalidate legislation was not modified, as Dr. Niembro argues, why wasn’t Justice González Alcántara’s vote to invalidate the challenged provisions taken into account?
If I’m right, and I believe I am, the eight-vote threshold to invalidate the provisions was met and yet the provisions weren’t invalidated. In theory, the Supreme Court could still rectify this situation by issuing a judgment clarification (aclaración de sentencia). But of course, this would require a political will from the court which I think it’s fair to assume doesn’t exist.
What about the broadcast of live Supreme Court proceedings?
In a nutshell, Dr. Niembro considers that live broadcasting of Supreme Court proceedings creates deliberation shortcomings (i.e. stifling deliberations and preventing candid exchanges) that make it difficult for Justices to express their methodological doubts. Therefore, he argues, we should reconsider if the benefits in terms of transparency and accountability of live broadcasting Supreme Court proceedings outweigh the deliberation shortcomings.
While we could have a conversation about the pros and cons of broadcasting Supreme Court proceedings, I don’t see how this could be the main issue in this case. In Mexico, Supreme Court proceedings have been televised for almost two decades, and yet to the best of my knowledge, this is the first time a situation like this has taken place. What is more, if it wasn’t for the broadcasting, the public wouldn’t have even known about the irregularity that took place while deciding this case. It is odd to say that the solution for situations like this should be less transparency.
On towering judges and the problematic use of constitutional categories
In my column, I framed the discussion in light of what in comparative constitutional law is known as a “towering judge”. In light of the situation I described, I asked whether there could be a towering judge that damages the constitutional order. For instance, one could think of an influential judge leaving a legacy consisting of the erosion of long-standing norms of judicial behavior that aim at maintaining/protecting judicial independence and impartiality. Dr. Niembro doesn’t dispute my use of the concept of “towering judge.” He embraces the notion that Chief Justice Zaldívar is such a judge, but he doesn´t go into detail as to what he means by this.
Dr. Niembro also objects to the question I raised about whether this is a case of abusive judicial review. In particular, he contends that the case I described does not fall into the category of abusive judicial review because “abusive judicial review is that which ‘intentionally undermines the minimum core of electoral democracy’”. Accordingly, since the LIE does not “regulate any aspect of electoral democracy or power distribution,” nor there is any evidence “that the Chief Justice, or any other Justice, intended to affect the minimum core of electoral democracy”, Niembro suggests, this is obviously not a case of abusive judicial review. Accordingly, he claims that I engage in a “problematic use of constitutional categories which are intended to denounce other types of phenomena”.
Dr. Niembro seems to hold a narrow reading of what could be understood as abusive judicial review. Dixon and Landau point out that “one cannot simply make a list of “abusive” changes in the abstract (…) [s]uch a judgment can only be made through close consideration of context, and perhaps sometimes only with the benefit of hindsight” (p.1324-1325). In that spirit, the question is whether inexplicably changing the way in which votes are counted to invalidate legislation could be considered as abusive judicial review. The question is important because, as I indicate in my last column, this incident didn’t happen in a vacuum. That is to say, this was not the first time that Chief Justice Zaldívar puts his independence and impartiality into question and it was certainly not the last: in early July, Chief Justice Zaldívar, who doesn’t have the power of legislative initiative, ‘sent’ a bill to the Senate to address femicides in Mexico.
Moreover, Dixon and Landau’s concept of the democratic minimum core builds in additional commitments to democracy, constitutionalism, and the rule of law which also includes “a minimum set of independent checks and balances on the elected government” (p.1323). Building on this idea, the logic behind the question I raised is that violating basic rules and norms of court proceedings sets a dangerous precedent that could result in making it more difficult to strike down legislation down the line (the court could unanimously consider a provision to be contrary to the constitution, but if each judge bases her argument in a different reason, the provision would remain valid)—i.e., weakening the system of checks and balances. In the case at hand, the inexplicable change to the way in which votes are counted to invalidate legislation effectively prevented the correct functioning of judicial review as a checking mechanism.
In light of the above, it is unclear to me what exactly is wrong with the question I raised. I think that it is clear from my column that I’m cautious not to jump to any conclusions in this regard. Part of our job as academics is to ask questions. Perhaps more importantly, our job as public law scholars includes pointing out when power is exercised irregularly.
Suggested citation: Mariana Velasco-Rivera, Of Counting Votes, Televised Supreme Court Proceedings, and the Problematic Use of Constitutional Categories—a Rejoinder, Int’l J. Const. L. Blog, Aug. 10, 2022, at http://www.iconnectblog.com/2022/08/of-counting-votes-televised-supreme-court-proceedings-and-the-problematic-use-of-constitutional-categories-a-rejoinder/
[1] Both the judgment and dissenting and concurring opinions can be found here by typing the number of the case (64/2021) on ‘número de expediente’ and choosing Acción de Inconstitucionalidad on ‘tipo de asunto’.
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