NUMBER 6 JULY - DECEMBER 2006
THE PARTICIPATORY AND DELIBERATIVE MODEL*
Jaime CÁRDENAS GRACIA**
Original Text (Spanish) PDF
I. The theoretical basis for participatory and deliberative democracy. II. A key element: the public nature of power. III. Freedom as non-domination. IV. Democratic models. V. The institutionalization of the participative and deliberative model. VI. Final comments.
I. THE THEORETICAL BASIS FOR PARTICIPATORY AND DELIBERATIVE DEMOCRACY
We will see here that there is no single model for democracy. Democracies can have different theoretical foundations: utilitarianism, pluralism, consensual theory, perfectionism,1 etc. I am an advocate for a democratic, participatory and deliberative model. The reasons for my preference are due to, in good measure, the ontological and epistemological basis of this position. A deliberative and participatory conception of democracy is characterized by dialogue and based on intersubjective communication among citizens. It therefore seeks to be an inclusive conceptualization that bases its decision making on the merit of arguments as well as on making procedures and results public.
Contemporary political philosophy, I believe, would find its foundations in two authors, among others: John Rawls and Jürgen Habermas. Both are advocates of a political system based on moral principles or decisions that must guarantee impartiality, universality and respect for personal autonomy.2
The late John Rawls distinguishes two principles of justice: freedom and equality. On one hand, he stresses the precedence of freedom and, on the other, he limits social and economic inequalities to those that are to the benefit the most disadvantaged members of society. Ontologically, his thesis could be summarized by stating that moral truth is comprised of the fulfillment of formal premises, inherent to the practical reasoning of any individual, particularly, the premise on which a moral principle is valid if it is acceptable to all people under equal conditions of impartiality, rationality, and knowledge of the relevant facts. Epistemologically, it establishes that knowledge of the moral truth is reached only through personal reflection. Discussion with others is a useful supporting element of individual reflection, but we must act upon the results of our own reflections.3
Habermas coincides with Rawls in that there are formal premises, such as impartiality, that are decisive in granting validity to moral principles. For Rawls, these formal premises are of a monological moral reasoning, for Habermas, they are social practice’s rules of the intersubjective discourse. For Rawls, the validity of the options is given by satisfying the requirement of impartiality. Habermas, on the other hand, requires a de facto consensus. Rawls holds that one can reach the conclusion that a moral principle is valid only through individual reflection without ignoring the role of discussion. Habermas believes that the only way to obtain moral knowledge is through a collective discussion, in a cooperative search for the truth.
Ontologically, the Habermasian thesis states that moral truth is constituted by the consensus that results from the real practice of moral discussion when it is carried out according to certain procedural restrictions regarding the arguments that are put forward. Epistemologically, it argues that the method of collective discussion and decision making is the only way to reach moral truth because, due to contextual conditioning and the insurmountable difficulty of putting oneself in another’s position, monological reflection is always distorted by an individual’s bias towards his own interests, or of those close to him. Only real consensus, reached after a broad debate with few exclusions, manipulations, and inequalities, is a reliable guide for accessing moral mandates.4
Carlos Nino approaches both ontological and epistemological positions in an equidistant version that draws from each. Nino says that ontologically, moral truth is created by satisfying formal or procedural premises of a discursive practice aimed at achieving cooperation and avoiding conflict. Epistemologically, his opinion is that intersubjective decision making and discussion constitute the most reliable procedure for obtaining moral truth. The exchanging of ideas and the need to offer justifications before others not only increases the knowledge one has, but also detects flaws in reasoning and helps satisfy the requirement of impartial attention to the interests of all those affected. However, this does not exclude the possibility that someone, through individual reflection, could gain access to the knowledge of concrete solutions, though it must be admitted that this method is much less reliable than the collective method, due to the difficulty of remaining loyal to representing the interests of others and of being impartial.5
Democracy is a political procedure that seeks to adjust itself —even if ideally— to conditions of impartiality, participation through the inclusion of all interested parties, and deliberation. The majority principle does not guarantee impartiality in and of itself. A decision supported by a majority and not by all of those involved in a conflict can be very biased. Unanimity is also not ideal, mostly because of the real need to make a decision in a limited amount of time. Moreover, using unanimity as a rule would indefectibly lead to the defense of the status quo.
Since the rules of majority and unanimity themselves are not enough, other elements are necessary, such as: 1) the knowledge of the needs and interests of others, which implies the inclusion of all sectors of society in public deliberation in order for individuals to have the opportunity to make decisions that will help prioritize their interests; 2) the need to not put forth naked self interests that would hinder reaching collective decisions, but rather present interests, needs and preferences within an argumentative framework, permanently justifying each point of view; 3) discussion with others contributes to the detection of errors of fact and logic since it is unusual for a majority to make the same error; 4) the need to "put oneself in someone else’s shoes", thereby understanding the interests and feelings of others, which requires both imagination and empathy; 5) placing consensus above mere negotiations based on interests alone, for when individuals and factions compete supported by their respective forces values such as equality are endangered, rights are not guaranteed, problems of collective action arise, and worse still, there is no guarantee that the result will be fair; and 6) the collective tendency towards impartiality derived from consensus on decisions in a process of inclusive participation and deliberation.6
Democracy is not a simple competitive struggle between groups for the people’s vote through the majority principle, as defined by Schumpeter.7 Democracy demands that all interested parties participate in the discussion and decision making processes; that they participate from a reasonable base of equality and without coercion; that they may express their interests and justify them with genuine arguments; that there not be any isolated minority, but that the composition of majorities and minorities change with different issues; that individuals not be subject to any particular emotions, etc.
The representative system, in its different historical phases, (parliamentarianism, party democracy and "audience" democracy)8 does not ensure a deliberative and participatory model.9 Broadly speaking, the representative system should be modified. First of all, representation could be conceived as a delegation to continue the discussion from the point voters reached during the debate that led to the electoral results in all the spheres of political decision-making: government, parliament, and the judicial branch. Second, as will be proposed later, it is important in many cases not to delegate the mandate to representatives so that the people themselves can discuss what must be done. Third, the political parties can help bring about the deliberative and participatory vision if they operate democratically internally, if they have their own deliberative and participatory procedures, and if they are organized around ideological positions, value systems and social models and not around solely sectarian economic or social interests. Fourth, the representative system demands the inclusion of the greatest number of social groups and people possible. Thus, it is not justifiable to exclude, for example, people convicted of committing crimes, for such activity cannot justify the exclusion of that person’s interests from the political system. The voice of the criminal must be heard to justify a certain solution. Lastly, the representative system needs to be modified in the four classic stages of the process: debate, mandate, control, and government action, in order to increase its deliberative and participatory components.10
II. A KEY ELEMENT: THE PUBLIC NATURE OF POWER
The basis of the "democratic principle" lies in the fact that "all power arises from the people". In other words, all power is based on public elements, legitimizing itself continuously through the public sphere, as well as being controlled and having to respond and accept responsibility publicly.
"The public domain" must rest on the participation and determination of society in fundamental rights, not only through increasingly open and transparent elections, but through venues based on ever more progressive processes as well.11 The public sphere is the democratic principal of all normative constitutions. The objective of public realm established in a democracy, as with the corresponding one for the Rule of Law and a republican State, is to maintain the same interrelations between delegations and the people’s responsibility before State organs. It does so in a transparent, rational, visible, and controlled way, even more so since theoretically all power originates in the people, meaning it answers to the people and modifies itself. Democracy cannot do without the public sphere. The public sphere is what breathes life into democracies.
The credibility of parliamentarian or presidential systems, both of which are representative, especially depends on the transparency of political decision-making processes. The democratization of any political system is directly linked to the fight for acquiring new forms and instruments that are more effective at making information public. Even in advanced democracies there is a cry to eliminate public deficits, either through the obligatory right to free speech on behalf of minorities; the limitation or extension, depending on the case, of the time allotted to parliamentary speakers; or social participation through NGOs in the electronic media.
At a parliamentary level, the openness and oversight deficit, which mainly occurs at the heart of parliamentary commissions, must be overcome not only by mechanisms and procedures that facilitate citizens’ access to the results of parliamentary work or to the daily agenda of parliament and commission sessions, but also through the creation of new rights which would allow citizens to propose mandatory issues to be added to the parliament’s daily agenda, or permanent knowledge at any stage of the legislative process and of the transparency of any decision or event in parliamentary bodies.12 Legislation, therefore, must always be public. The law as "law in action" starts by being "law in public action".
Similar measures must be taken regarding the Executive Branch. Any legal attribute of a discretionary nature must be grounded in order to be publicly justified. No obligation of confidentiality among officials —save for information concerning citizens— should prevail, for it limits public criticism before the Executive. Openness and transparency of executive actions, in public policy, must be a defining characteristic. The withholding of information must always be the exception and fully justified, unlike what the Congress unfortunately approved in Articles 13 and 14 of the Federal Law for Transparency and Access to Public Government Information.13
The transparency of judicial action is an age-old demand of democracy. At the same time, it is a basic institution for the Rule of Law, save in exceptional cases. The openness of the discussions of collegiate bodies and of judges and magistrates’ minority votes represents a well founded legal and political requisite by reproducing a part of the democratization of jurisprudence in the degree that it openly shows the events within the context of public res through a public process with all of its changes, therefore opening itself up to criticism. Openness in the jurisdictional duties must grant legal minorities the possibility of becoming majorities, something that happens with the help of the public realm, especially from scientific criticism.
Transparency within the Judicial Branch establishes the material legitimacy of this responsibility of the State. As Perfecto Andres Ibanez says, it is a type of legitimacy that is not assimilable to that which is derived from the liturgical instating of liberal State’s magistrates as sacramental and perpetual, but rather conditioned and intimately linked to the quality of the professionalism, brought before public criticism, and eventual demands of responsibility established in the legal code.14
On the other hand, transparency is not an exclusive characteristic of State structures. It is also found in the social realm. The development of transparency involves the participation of many, like political parties, associations, churches, the press, labor unions, etc; as well as of any citizen organization that proposes programs or defends relevant public interests. The social sphere continuously runs the risk of being manipulated by anonymous intermediate powers and is obscured when State structures and those heading them, do not demand that social and economic organizations publicly show their transparency.
Political parties are among the most important intermediate organizations. The public duty of any party is to force its elite to reveal its political secrets. Political parties in Mexico need to be more transparent to society and more democratic internally. In turn, the State and its bodies should perfect the mechanisms of supervision to review party accounts and demand greater transparency in political and financial operations.15
The above shows the ever-growing need for positions that demand greater participation in the "public realm" along with increasing democratization of the political, social, and even scientific realms in response to the different problem Mexican society faces. So much so, that "in the name of democracy" a higher degree of intervention is demanded, and rightly so, in and behalf of the public realm. The same is true the other way around. "In the name of public interests themselves", a higher level of democracy is strengthened. In Germany, Häberle16 alludes to the parliamentary reform that advocates granting Parliament a more public character, and holds that citizen organizations are necessary to carry out "public audits" of parliamentary commissions and any proceeding or negotiation verified by legislature.
Participative and deliberative democracy needs openness and transparency from the State apparatus, society, and the organizations, which through their actions or negligence can have an impact on citizens’ lives. Openness favors citizen control, public accountability and criticism from citizens. It also molds the imagination so that different sectors of society, the State or the economy can make relevant proposals to face problems and evaluate the different ethical-political dilemmas that our human condition generates.
III. FREEDOM AS NON-DOMINATION
There are different contemporary schools of thought that establish current political ideas. At least four can be identified:
The economic analysis that highlights the importance of satisfying the preferences that people incorporate into the social world and the need to incorporate efficient rules to guarantee the highest satisfaction of preferences.
The school of thought on the universal rights of people and the exigency that political institutions respect and promote the use of those rights.
The school of thought that gives priority to issues of well-being, of equity, or of equality, and that advocates a system that will result in the fulfillment of one or another group of values.
The school of democratic ideas that grants legitimacy to any policies or structures that derive from the will of the people —according to the description given by this school of majority opinion— or at least, the will of the people’s elected representatives.
An additional one, but no less important, is the republican idea that rethinks democratic institutions, displacing the notion of consent in favor of deliberation. This school of thought has its origins in classic Rome and is associated with Cicero. It later reappeared during the Renaissance, mainly through Machiavelli’s political philosophy, and it provided the language and the political tasks during the English civil war, as well as in the American and French revolutionary wars.17
Republicanism is based on the idea of freedom as non-domination, as opposed to the traditional liberal idea of freedom as non-interference.18 Republicans understand freedom as a demanding concept. It is not enough for the authority or the powerful to refrain from interfering (negative freedom), but current or potential mechanisms for any kind of arbitrariness over citizens’ lives should be eliminated. Republicans oppose arbitrary interference, but understand that under certain conditions and legal or political prerequisites, there can be a positive interference for the good of all. In other words, there could be interferences of the State or of the law that promote freedom. In particular, there is interference without any loss of freedom when the interference is not arbitrary and does not represent a form of domination: when it is controlled by the interests and opinions of those affected and is required to serve those interests according to said opinions.
The Republican philosophy does not ignore the fact that legally constituted political authorities represent potential oppressors, but the recurring republican idea is that these authorities will be appropriately restricted, and will not have an arbitrary power over others, when, for example, adequate mechanisms of representation, rotation of posts, and the division of powers are established. Although the law necessarily implies interference because law is necessarily coercive, said interference will not be arbitrary if the authorities have the authority to interfere when they pursue citizens’ common interests and only when done in accordance with the opinions received from the citizenry.
How can the State organize itself so that State interference carries with it the least possible amount of arbitrariness or none at all? Republicanism proposes a list of institutional designs and preconditions. From the classic idea that the system should contribute to "an empire of laws and not men", that there be a real division and balance of powers, or that there be counter-majority mechanisms such as the constitutional review of laws, to rigid procedures of constitutional reform. The purpose is that the constitutional designs and preconditions subdue the will of those in power; that they make the organization of the government more difficult, and not easier. As Pettit says, they are formal constitutional restrictions to restrict the will of the powerful.19
Perhaps more important than the institutional designs themselves are the preconditions and premises of these designs. The first premise of current Republican theory is deliberation or disputability. In other words, any institution, program, law or public policy is subject to the scrutiny and criticism of the citizens. It is of no use for decisions to be made with the consent of the representatives or passive or feeble approval of those who are governed. The important thing is for public decisions to be questioned, and the more they are, the better. According to this model, a government is democratic and represents a power controlled by the people to the extent that the people, either individually or collectively, have the permanent possibility of disputing or deliberating the decisions of State bodies.
Pettit says so unequivocally:
The demos or people that govern themselves can mostly move about with the automatic pilot turned on, allowing the public decision making to be carried out through routine processes more or less inscrutable What makes it self-governed, what makes it democratic, is the fact that it is not, whether you want it to or not, subjected to that model of decision making: the fact that it can dispute those decisions at will and that depending on the result of that dispute and where its relevant opinions and interests are left standing, it can also force them to change.20
Deliberation, dispute, criticism or public design does not require decisions to be based on negotiations in which the different interest groups try to find common ground that benefits all by reaching an agreement that requires the least possible number of concessions, but rather that these decisions be based on debate in such a way that all the parties try to agree on which decision best responds to the considerations that everyone sees as relevant. The appeal of the disputes that arise from debate is that they are open to all those who can argue plausibly against public decisions. The "republic of reasons" or "always listen to the other side" are related to the ideas of discussion like Perelman’s concept of the universal audience21 or the Habermasian idea of the ideal community of dialogue.22
The second premise demands an inclusive republic, that is, participative. Deliberation without the inclusion of the relevant groups does not generate democratic conditions. The interests and interpretations of all sectors of society must be effectively represented and must be considered in public debate. If, for example, there is a bicameral system, having different methods of voting for the two chambers may be convenient. If there is a problem with electing women, it is not a bad idea to require each party to draw up lists with at least a 50% of women. If there is an indigenous population, there must be available seats for those social groups, etc. It is important not only for the legislative branch to represent these sectors well, but also for the judicial and Executive to do so as well. When that is not possible, other channels to relevant positions (NGOs for example) must be made available. Public and institutional channels must be open to discussion. Along with that, it must be avoided that influential groups, economic or otherwise, have a greater say than the rest. In those circumstances, the convenient and just thing to do is to take the microphone away from them.23
The third premise points to how to debate and deliberate calmly without it becoming an infernal turmoil that helps no one. The solution lies in creating the channels for the debate, from institutional ones to less conventional ones like conscientious objections or civil disobedience.24 Furthermore, the option of secession from the State should always remain available, even if only for extreme cases.
The three premises, plus others like the ones of openness and transparency mentioned earlier, reveal the importance of deliberation and participation in creating a desirable democratic model. Not all democratic models have the same weight nor should be valued equally. It is not the same thing to say that people’s sovereignty lies in authorization or consent than it is to say that people’s sovereignty lies more in dissent and even in the right to resist.
IV. DEMOCRATIC MODELS
Although Mexico has not concluded the transitional process towards democracy, and much less its consolidation, the disillusionment towards politics and politicians grows steadily.25
In my point of view, the reasons for this disenchantment, besides cultural and historical ones, have to do with the following causes:
The sluggishness with which politicians reach democratic institutional arrangements.
The political class’ tendency to protect itself at the expense of the Rule of Law when faced with accusations of illicit behavior.
The lack of transparency in the procedures through which agreements are reached.
The growing partisanship of the many political parties.
The lack of channels for direct citizen participation in public affairs.
The weakness of State oversight and control mechanisms.
The absence of a culture and practice of accountability and transparency.
The weakness of Congressional control mechanisms and the absence of democracy in the legislative branch.
The little importance legal channels have for solving social, economic, and political conflicts and claims.
The absence of a culture of civil disobedience regarding laws, programs or public policies that are unfair or removed from the interests of the citizenry.
I will not expound on all these reasons and causes. I will only explore a few of these further. However, before going any further, it is important that we clearly understand the type of democracy we want to build.
There is much discussion in democratic countries as to whether or not the way their democracy is conceived and carried out is the best. Many attest to the fatigue that a representative democracy without deliberation, transparency, accountability and participation produces. Others, on the other hand, tend to defend the merits of a representative democracy. Sartori maintains that a representative democracy is sufficient because it brings with it: a) parliamentarians’ receptiveness to their electorate and their demands; b) accountability, for parliamentarians largely respond for their actions; and c) the possibility of dismissal from office through electoral punishment.26 As we know, however, these characteristics are not easily found in so-called democratic countries. It is not entirely true that the government and legislators always yield to the demands of the electorate — for some, ceding or admitting to the electorate’s claims constitutes a sign of irresponsibility. Moreover, a characteristic of representation consists in not ceding to anyone or anything except the directive of the legislator’s own opinion. Accountability is also complicated because a proper evaluation of a task requires not only knowing what has been done, but also how it was done and what could have been done. This is so because accountability passes through an unlimited access to information allowing the electorate to remain continually up to date on the undertaking, forms, procedures, and agreements of those in government. As to the dismissal of elected officials, it is almost always confined to the moment of the elections themselves and only rarely between elections, unless the termination of the mandate is allowed.
It is a fact that politicians, even in democracies, have a bad reputation. Paolo Flores D’Arcais points out that in Italy, "most Italians feel that their greatest enemy is "partyocracy", that is, professional politicians, and as a result, politics itself".27 What can one do about the disrepute of politics and politicians? Some would say that the solution could be found in reviving Athenian direct democracy. Almost no one would say so for it has been discredited since the Thucydides. What is needed is the correction of the serious oligarchic irregularities of the liberal model of indirect representation, on the one hand, and on the other, carrying out certain implants from the republican model on existing institutions.
Representative democracy or democracy of the moderns is one that has undergone many variations. Bernard Manin’s classic book presents the stages of evolution of this representative democracy. At first, it was a democracy of notables with a discriminating vote and much deliberation in parliamentary headquarters and not in extra-legislative seats. Then came democracy based on parties of the masses, with a universal male vote, oligarchization and party bureaucratization, with the deliberation outside parliamentary headquarters and strong political ideology. It has now become an audience democracy based mainly on electronic media; a democracy of political marketing, focuses more on the candidate than on the party, more on the image than on the program, but equally removed, as all the others, from the needs of the common citizen.28
How to build a good democracy? What models should one follow? There are three classic authors on this subject. On one hand, Habermas’s Between Facts and Norms, which rescues deliberative processes to build up institutions and decisions. Democracy is not a mere aggregate of interests or preferences but rather a complex deliberative mechanism to define which preferences, institutions, and public policies are or should be justified. An author in the same category is Carlos Santiago Nino, who in his work The Constitution of Deliberative Democracy argues for a democracy legitimized through discussion, debate, openness and participation. There is also Pettit’s work, which insists on a republican and egalitarian conceptualization of democracy, emphasizing the role of public debate.29
These authors highlight the role participation and citizen deliberation has as driving forces in building a democracy that is different from traditional models. Some have seen this as naiveté and an institutional impossibility to fit together stability, governance and democracy. They have also seen the construction of participatory and deliberative models as unfeasible illusions because of the absence of a reflexive and mature citizenry, aware of their civic duties and capable of representing general interests and not just their own.30
Notwithstanding whatever truth these critiques may hold, for the sake of ethics and in order to have a healthy political system, it is necessary to rethink the desired model of democracy. In an enlightening essay, Ovejero takes into account two variables as elements for the analysis of the models. On the one hand, there are the characteristics of the process that leads to the decision and distinguishes a negotiation, in which proposals are weighed according to the power that backs them, from a deliberation, in which proposals are measured by their normative quality, in other words, by the reasons on which they stand. In deliberation, individuals can change their minds in the light of better arguments. The same does not occur in a negotiation, in which one wins but does not win over. The other variable refers to the relationship between those who make the decisions and those whom the decisions will affect. If they are the same individuals, then it is a participatory democracy; if they are different and the decisions are made by representatives with a certain dependency —their election— on citizens as a whole, one is referring to a representative democracy. In the end, the line between a democracy of participation and one of representatives depends more on the control citizens have over their representatives than on the representatives’ existence itself. In a participatory democracy, citizens have direct and regular mechanisms established to control and penalize their representatives in the event that they do not feel represented, as in the case of a dismissal from a position of power. In a representative democracy, politicians can reach decisions with freedom and cannot be revoked unless it is done indirectly (not being reelected or penalty against the party in the next elections).31
By combining both variables, Ovejero arrives at four types of democracy:
| Deliberative – Representative |
Elitist – Republicanism
| Participative-Deliberative |
| Mediating Participative |
Representative-deliberative democracy or elitist republicanism is Madison’s democracy of the notables. It is characterized by the deliberation of the best, of the representatives. This type of democracy was the ideal of founding fathers of the United States of America. It is a democracy that undoubtedly presents deficiencies in terms of participation and deliberation.
Representative-mediating democracy or elitist liberalism is in good part the one found in western democracies. It is predominantly based on the maximization of negative freedom, in other words, the minimal state. In this system, citizens forget about the performance of the public sector. Electors choose their representatives who make the decisions that fall upon the whole of the citizenry. Decisions are processed through agreements among the representatives and there is little public deliberation, debate, and desire to openly show the processing of the decisions. This model is deficient because all interests or social voices and the information to make the decisions are concentrated in the hands of the representatives.
The participatory-mediating model (assemblyism) is the Athenian model of the agora in which a good number of society participates in the decision-making process. However, the processing of the decision does not lie in deliberation and argumentation, but rather in the power of the acclamation or drawing.
Lastly, the participative-deliberative model or egalitarian republicanism showcases the control of the representative by those represented and the open and public deliberation of issues in which citizens can take part in many decisions. As James D. Fearon points out, deliberation alludes to a special type of discussion —which implies serious and attentive pondering on the reasons for and against a given proposal— or an internal process in virtue of which an individual weighs the reasons for and against certain courses of action.32 Deliberation and participation produce a series of virtues in citizens and in the model itself. Cognitive gaps are corrected, for occasionally it is not enough to merely know that a problem exists in order to calibrate it. For example, in the United States of America, a jury made up of whites does not have all the information needed to understand the behavior of a Hispanic mother, given that practical wisdom is not only a matter of having good information, but rather the sensibility to weigh it. The production of virtue is increased since one cannot recover what one does not know, as with the women of India who do not claim what they do not know.
The egalitarian-republican model fosters citizen participation and deliberation, brings politicians and citizens closer, allows the latter to oversee the former, lets them know why certain decisions were made and not others, control the procedures of decision-making in order to determine the level of justification of each point of view, and know about the normative quality of each decision and each step in the process regarding the making of public decisions. Further, it incorporates the citizens into the public sphere and educates them in civic virtue.
This model is similar to the concepts that see an open process in the Constitution, a task that needs to be carried out and that coincides with the principle that democracy is a process that guarantees the configuration of multiple alternatives in favor of the diverse groups in society. Democratic procedures are valued in the degree to which the complexity of making possible the emergence of social, political, cultural and economic alternatives increases. In Haberle’s terms, it is about legitimization of procedure and not legitimization through procedure.33
V. THE INSTITUTIONALIZATION OF THE PARTICIPATIVE
AND DELIBERATIVE MODEL
Criticism of the deliberative and participatory models of democracy usually comes from those who maintain the impossibility of institutionally materializing the model, for it is common to forget that any proposal for political improvement or change has to take shape within a set of institutional mechanisms to become reality. Otherwise, it would remain in the limbo of good intentions.
That well-founded critique forces us to propose clear institutional measures for Mexico that favor a more participatory and deliberative democratic model. In my opinion, these measures must at least pay attention to the following issues:
The inclusion of mechanisms for semi-direct democracy.
A reform of the legal framework regarding access to information.
An increase in the Legislative branch’s powers of control over the Executive, and greater transparency in the decision processes of both the Congressional chambers.
A reform of the electronic means of communication.
The juridification of a conscientious objection and political acceptance of civil disobedience.
Internal democracy within political parties.
It is evident, as mentioned earlier, that these are only some of the many measures that could be employed by a participatory and deliberative model that Mexican society could aspire to have.
1. Mechanisms of semi-direct democracy
This old proposal aims not to exclude citizen participation in any way and not to promote citizen participation exclusively through parties. It involves incorporating independent candidates to the legislature, as well as the concept of establishing mechanisms on a federal level like the referendum, the plebiscite, grassroot legislative bills, the dismissal from a position of power, and fomenting of citizen associations, etc.
All of these measures are desirable in order to limit the unacceptable consequences of an entire representative system based exclusively on parties: elitism, restriction of the mobility of political elites, and a lack of transparency in deliberation and in public affairs.
However, not everyone agrees with the methods of semi-direct democracy. Important authors, such as Thomas E. Cronin, point to an exaggeration of the dangers posed by the mechanisms of semi-direct democracy. For example, in the United States of America, although the referendum and grassroot bills have occasionally manifested tendencies against minorities, the results of these participative processes have not violated rights in a greater degree than legislatures have. The advantages of these methods consist in providing escape valves in the face of popular discontent; making it possible to control corrupt officials; and most importantly, allowing voices that are not normally taken into account to be heard.34
The Swiss example demonstrates the role that different forms of referendum, the repeal of a mandate and procedures for the public revision of the constitution and laws has played in that country. The purpose of these measures is to allow the people to become involved in key political decisions and to oppose the elite. The experience of this country proves that these instruments of semi-direct democracy, far from being harmful to social and economic development, have broadened liberties and strengthened social cohesion and integration in a state divided by ethnicities and languages.35
2. Reforming the legal framework for access to information
This is an important issue that was partially addressed by the Federal Law for Transparency and Access to Public Government Information published in the Federal Official Gazette on June 11, 2002.
This law is censurable because of the inherent deficiencies in the autonomy of the Federal Institute of Access to Public Information and because Article 14 establishes too many exemptions for issues related to decision-making processes (exemptions in administrative procedural processes, the opinions that are part of a public servant’s deliberative process, a lack of openness in meetings and in collegiate bodies, in legal procedures, etc.). It is not a law that promotes maximum transparency and government openness.
It is a legal framework that is based on the principle that the only information that should be made public in a democracy is the final results. It is not understood that a democracy is a matter of procedures and results, and that both procedures and results should be public, since to understand the result, it is necessary to understand the procedure and how it is brought about. The principles proposed by the "Article 19" Non-Governmental Organization regarding these issues are widely known: The principle of maximum disclosure, of the obligation to publish, of promoting an open government, of a limited scope of exemptions, of processes to facilitate the access to information, of minimal costs to the citizens, of open meetings, of precedence of information disclosure over restrictions to access it, and of protection to citizens who denounce irregularities in public activities.
The obscurity in the process hinders the following: citizen control, transparency and the public deliberation of issues. The right to information is not merely one more human right; it is a structural condition for democracy. It is not a civil freedom; it is a political freedom par excellence. The United States of America’s Supreme Court, in its famous ruling of The New York Times vs. Sullivan said that issues of public relevance require greater protection of freedom of speech and information and can therefore include exaggerations, errors, and even libel the affected party because these things are inevitable in an open debate.36 Freedom of speech and freedom of information are crucial elements for an open society. Only those who decidedly support freedom of information and are not afraid of knowledge are capable of being citizens in an open society.
3. An Increase in the Legislative Branch’s Power of Control over the Executive and Greater Transparency in the Decision-Making Process
in both Congressional Chambers
Many means of increasing the Legislative Branch’s control over the Executive have been proposed in Mexico: immediate reelection of deputies and senators, an extension to the periods of chambers’ sessions, symmetrical participation of both chambers in legislative and budgetary processes, the creation a vice president or chief of staff with the Congress’s trust, ratification of the presidential nominations for Cabinet members by the congress or by one of the chambers, censure of Cabinet members by the Chamber of Deputies, impeachment of the President, etc.37 I will not refer to these suggestions here in light of the fact that they are frequently debated within academic circles. I would rather focus on another argument, of no lesser importance, regarding the democratization of the legislative chambers.
As Manuel Aragon reminds us, there is a widespread school of thought in Latin America, after experiencing problematic and authoritarian presidentialism, to parliamentarize the legal system.38 This parliamentarization is not only meant to strengthen the Congress, but to promote control over the Executive and intensify the deliberative and participatory processes in the Legislature as well. Aragon proposes a distinction between control "for" and "in" Parliament, which aims at pointing out that control is carried out not only through acts that express the will of the chambers, but also through the activities parliamentarians and parliamentary groups carry out in the chambers, even though they may not result in an act of control that is adopted. This is so because implementing instruments of government oversight does not merely seek a comminatory decision from the Chambers, but also, and increasingly, to influence public opinion so that under such circumstances the Legislative Branch is the place from where control arises, but society is where it is addressed since it is there where its effects can take effect.
Control in the Parliament is a weapon for the parliamentary minorities and that is why we must look to the democratization of the chambers. Parliamentary minorities should at least have the following rights: the right to information, the right to completely open deliberations, the right to debate, the right to research and the right to parliamentary "time" (in other words, inclusion of items in the daily agenda of the chamber sessions.)
Thus, the elements of participation, deliberation and transparency would take place inside the Legislative Branch in order to promote the participation of political minorities and so that control mechanisms over the Executive that the chambers take as a body are backed by legitimate and open internal processes.
4. Electronic media reform
An audience democracy poses challenges to deliberation and participation. Sartori has observed this in pointing out that audiovisual communication imposes simpleness and the lack of reflection.39
In Mexico, we should begin by reviewing the system of concessions and authorizations for the media and grant concessions through open procedures supervised by the citizenry.40
Concessions should be removed from the Executive scope and placed in a different institutional realm, perhaps in the hands of an autonomous constitutional body whose heads would be designated by a qualified majority in both chambers of Congress, have a guarantee of unremoveability and permanence in their positions for a designated period of time and be obligated to regularly report to Congress and to the citizenry on its performance. This autonomous body would be in charge of the social communication policies of the State and not just those of the Executive Branch. Moreover, based on the Constitution and the law, it could obligate concessionaries to set aside a good part of their time to political, cultural, or scientific debate.
The Constitution must be reformed to take the role of the media seriously. Establishing principles and compelling them to have a democratic organization are constitutional and legislative tasks that are still pending. The media is not simply private companies. They influence all aspects of public life, starting with power. Lawmakers must respect the freedom of enterprise, but it must also bring the media and the constitutional norm closer together because of the social and political side effects of its operation. This implies a more transparent operation of these companies and supervision by the State under the criteria of plurality and making the most of the rights of freedom of expression and information, as well as seeking safeguards for equal opportunities among political parties, a proper regulation of the time and methods for the participation of political parties and their candidates, and open spaces for political and social minorities.41
Regarding government-owned media, like the Congress channel, it would be fitting to transform it into a State channel that accommodates all the branches and bodies providing them with national coverage that is commercial free as it has been so far. It would also be suitable to establish an organization that could depend on citizens unconnected to the parliamentary groups in order to achieve supervision of legislative, Executive, and judicial activities, and of other bodies and authorities, under the scrutiny of criticism, proposals and debate.
It is necessary to approach the underlying issue of the absence of qualities, such as reflection and deliberation in the information and communication from the media and other means of telecommunications like the Internet, from the criticism on current commercial criteria. As stated here, their use can also become deep and profound if the quality of programs and information share those qualities. The Internet, apart from its general use, can become a useful tool for measuring the interests and needs of the population in terms of reference purposes. In other words, the depth and reflective nature of the media, or lack thereof, depends on the orientation the media is given, as well as the interests that control it.
5. The juridification of a conscientious objection and political
acceptance of civil disobedience
This deals with two institutions that Mexican law and political science have not dwelt on enough. Both are based on the principle that authorities and norms cannot be simply de jure, but must be legitimate as well. In other words, in order to obey norms or official government actions one must have additional, mainly moral and political, reasons to assert claims of obedience and compliance.
Both institutions have conflicting points. Civil disobedience is characterized by:
1) The objective of bringing about some improvement in society. 2) The moral right to violate an unfair law or to violate a fair law in protest over an unfair law. 3) Its public and open nature. Whoever engages in civil disobedience does so not only to persuade governments but also to influence public opinion, for many people often agree with government opinions based on lies and evasions. Civil disobedience performs a pedagogical function on a legal, moral and political level. 4) Willing acceptance of punishment. This acceptance implies respect for the legal system, as Thoreau stated: "Under a government which imprisons any unjustly, the true place for a just man is also a prison". 5) The nonviolent nature of the acts of civil disobedience. 6) That the civil disobedience be carried out within a framework of respect and closeness to the law. 7) A seventh aspect of disobedience alludes to the circumstances under which it is executed: A) Civil disobedience is carried out under circumstances that those involved regard as exceptional, in virtue of at least two reasons: 1) the impossibility of using orthodox means of political participation when a minority or interest group does not have any possibility of achieving its goals through the normal channels of political participation. 2) A sense of urgency since a loss of time would hamper their objectives. B) Other reasons that could serve as a specific framework for civil disobedience are: 1) A lack the legal effect of constitutional provisions. 2) Authorities’ violation of constitutional provisions. 3) The violation of international agreements. 4) Authorities’ violation of laws that are in effect. 5) Authorities’ application of laws that are not considered valid.42
For its part, conscientious objection is a legal concept that is regulated by some constitutions and laws. It is part of law and consists in not complying with legal provisions that are considered contrary to individual conscience for religious or moral reasons. There are known cases of conscientious objections regarding military service and blood transfusions. In Mexico, the Jehovah’s Witnesses have unsuccessfully attempted to apply it in public schools where their children are compelled to pay homage to national patriotic symbols. The aim of conscientious objections is to attain exclusion or non-application of norms or government orders for moral reasons in particular cases.43
Civil disobedience, therefore, has a general and public nature that conscientious objections do not necessarily possess. Besides the fact that the latter is juridified and so the conscientious objector is exempt from any sanction. Both of these instruments are useful and necessary in a model of participatory and deliberative democracy, they favor the voice and the rights of minorities, and they are civil society’s modern instrument to oppose illegitimate government orders. Besides motivating and recreating public debate and reflection on common issues, they end up strengthening constitutional consensus on legitimate bases.
It has been said that civil disobedience can be seen as either a test of constitutionality or as the exercise of a right. In regards to a test of constitutionality, in current representative political systems, the political and moral objections against a specific law can be formulated in terms of doubt concerning the constitutionality of a law. Therefore, if said disobedience is public and non-violent, then we are before an example of civil disobedience as a test of constitutionality. Disobedience can also imply the exercise of a right when authorities impose restrictions on the exercise of certain rights such as the right to protest, the right to assembly and the right to freedom of expression. In these cases, those affected could consider that, given the circumstances, the authority’s decision is an abusive restriction of their rights and therefore decide to disobey it.44
Hannah Arendt explains the virtues of these mechanisms through the example of slavery in the United States of America:
It was citizen movements, clearly of civil disobedience, against the laws of the southern states that brought about this change in the way of thinking. It was not the law but civil disobedience that brought the "American dilemma" out into the light and compelled this nation to acknowledge, perhaps for the first time, the enormous dimension of a crime that is not simply called slavery, but which is the only form of servitude "that has been upheld in all the systems of this type known throughout civilization". Besides the many blessings, the people have inherited the responsibility for this crime from their ancestors.45
6. Internal democracy in political parties
The idea is to open political parties up to society so that they do not become closed oligarchies lacking internal debate and with top-down decision-making. Political parties in a democratic society are vehicles of participation and they help in the integration of State bodies. But what happens when these privileged instruments become rigid oligarchies? They become, without a doubt, the worst enemies of democracy; they turn into the black beast of politics as happened in Italy in the second half of the 20th century.
It is said that what the people believe about a political system is not foreign to it, but rather is a part of it. Political parties have been falling in citizens’ expectations. This is a global phenomenon. In Italy, as mentioned above, the general elections of March 27th and 28th, 1994, meant the end of the historical forces that had governed that country since the second post war period. Italian critics, like Salvatore Lupo have stated that: "The party can seem to turn a deaf ear on the collective demands; the name of the party itself becomes obsolete".46 The Italian phenomenon is not exclusive to that country. Just as in Europe, in Latin America political parties are seen in an unfavorable light. There is broad agreement around the idea that the internal workings of the political parties are not democratic enough and an anti-party ideology multiplies and extends itself.
The party crisis is a crisis of the political systems, particularly of democratic ones. If the parties behave themselves as highly bureaucratic and oligarchic groups that control, often in a clearly monopolistic manner, some of the fundamental processes of the democratic system —candidate nominations for different types of elections, election campaigns, member recruitment for the political elite— it would be absurd to deny the fact that the lack of democracy within political parties clearly results in a deficit of the democratic mechanism as a whole.
How is it possible to resolve the crisis of legitimacy and the crisis of political parties? In his well-known work on party models, Panebianco bases himself on the transformation of contemporary political space he has seen arise from the professional-electoral party, which in turn has generated a multidimensional scope of politics. In this sphere, the traditional left-right continuum has been replaced by the problematic establishment-antiestablishment division, which is characterized by anti-conventional and multi-focused political behavior. According to this author, the crisis is surmountable by means of three types of evolution:
The first consists in the dissolution of parties as organizations.
The second is a return to the ideological fervor; an attempt on behalf of the existing parties to once again perform the traditional expressive function, through a recovery of the old identities and a return to extremisms of both the right and the left.
The third possibility is one of political innovation in a strict sense. This innovation would be produced externally by new "political entrepreneurs".47
In our immediate surroundings, Blanco Valdes exposes the outlets for political party crises: 1) Overcoming political parties themselves with new social movements; 2) The weakening of the parties through changes made to the electoral system (uninominal districts, majority systems, open lists); 3) the legal correction of oligarchic tendencies; 4) The exhibition of parties to society through a system of primaries and immobilization of the political class, establishing limits and cuts to representative positions.48
This author is not taken in by the merits of parties’ legal regulation. He adduces that in the case of the Federal German Republic, the Law of Political Parties has been rarely applied. In Spain, legal control, in his point of view, has also not given results and points out that:
It is hard to express it any more crudely, but it is also equally hard to do so with any comparable degree of clarity, a clarity with which it is hard to disagree. Although I would not dare to wholeheartedly affirm that all measures of legal discipline are useless —think, for example, of the demand that agreements by parties’ governing bodies be made by secret ballot or of the one in which fundamental decisions for the life of the party have to be submitted for consultation to the diverse organs of representation of all affiliates— the truth is that, being realistic, their effects tend to be quite limited.49
These expressions not withstanding, the truth is that legal measures have been instrumented in more than one country and have been successful in some cases. Obviously, legal regulation will not solve all problems concerning oligarchization, but its more detrimental effects can be stopped.
A long time ago, Germany prohibited the Socialist Reich Party in 1952 and the Communist Party of Germany in 1956. Since January 2001, the federal government has requested the prohibition of the National Democratic Party of Germany (NPD) before the Constitutional Court. On March 30, 2001, the Bundestag and the Budesrat filed their claims for identical reasons. The request is based on a compilation of facts and declarations that aim at demonstrating the unconstitutional nature of the National Democratic Party of Germany, based on considerations such as: rejection of the Constitution; hostility towards democracy and the Rule of Law; disrespect and loathing for human dignity and fundamental rights; ideological intolerance, especially towards those who express different opinions regarding foreigners; a totalitarian political program, a resemblance to National Socialism; anti-Semitism; a revisionist and violent attitude, actively belligerent behavior, and a propensity to the use of violence.50
Regardless of what happens with the claims of 2001 —the claimants desisting from their suit, the court rejecting the petition, the court banning or not banning the NPD— what is unquestionable is that the political nature of an act does not exclude legal knowledge of it, nor does the political result strip it of its legal nature. Actions of parties have no reason to be excluded from the reach of the law. Moreover, there is no reason for human rights to not be respected within parties, or not to legally demand that they have a democratic organization and function.
In Spain, a law on political parties published in the Official Gazette of the Spanish State on June 28, 2002, will most likely allow the declaration of illegality of the Herri Batasuna. The Spanish Constitution is not guided by a concept of militant democracy as in Germany, but it is guided by very clear principles that declare the illegality of organizations that do not come to terms with democratic principles, or, as stated in Article 9, Section 3, of the Spanish Law on Political Parties, that systematically infringe upon fundamental freedoms and rights, foment, instigate or legitimize violence as a means to achieve political objectives, or complement or politically support terrorist organizations in pursuit of their objectives to subvert the constitutional order or seriously upset public well-being.
In the same key, the European Court of Human Rights, in its judgment of July 31, 2001 (in the case Refah Partisi et. al. v. Turkey) determined that the Turkish Constitutional Court’s dissolution of said radical Islamic organization —the Rafah Partisi— had not violated article 11 of the European Convention on Human Rights that guarantee the freedom of peaceful assembly because the manner in which that organization operates goes against democratic principles. To quote the European Court of Human Rights:
The Court considered that, when campaigning for changes in legislation or to the legal or constitutional structures of the State, political parties continued to enjoy the protection of the provisions of the Convention and of Article 11 in particular provided they complied with two conditions: (1) the means used to those ends had to be lawful and democratic from all standpoints and (2) the proposed changes had to be compatible with fundamental democratic principles. It necessarily followed that political parties whose leaders incited others to use violence and/or supported political aims that were inconsistent with one or more rules of democracy or sought the destruction of democracy and the suppression of the rights and freedoms it recognized could not rely on the Convention to protect them from sanctions imposed as a result.51
The above manifests the importance legal regulation can have in sanctioning not only the antidemocratic and anti-juridical attitudes of parties in relation to the political system as a whole, but it can also, when properly justified and with precision, allow the courts or autonomous constitutional bodies to watch over the internal life of political parties, and if needed, dole out the corresponding legal correction when they either violate the rights of their members, do not work properly or do not comply democratically.
The national political class should understand this and avoid that Mexico go from a single hegemonic party to a dogmatic and sclerotic multi-party rule that will distort the political system under construction. Many steps can be taken in this direction, especially in approving a law for political parties that would guarantee the internal democracy of parties in areas such as: the human rights of their members and sympathizers, democratic procedures and structure, internal movements, and internal and external control mechanisms to safeguard democratic organization and structure.52 At the moment, there is little debate on the subject. As things stand now, political parties are opposed to having electoral authorities monitor their internal affairs. An example of this occurred during the 2002 session of the General Council of the Federal Electoral Institute during which the parties questioned its authority to sanction them and restore the rights of their members after a member had violated its own national party statutes by expelling one of its leaders in the State of Mexico State.53
Internal party democracy is clearly linked to the greater issue of party financing and the oversight of their incomes and expenditures. Despite recent progress, Mexican legislation is still quite weak when it comes to the patrimony of political parties, their pre-campaigns, and the attributes the electoral authority has for obligating authorities and individuals to cooperate in their investigations. In addition, there is internal debate within the electoral body regarding information and transparency in its oversight procedures and decisions concerning political parties and groups. As for public financing, society’s criticism of its high cost is not accompanied by a debate on the ties between the private sector and the authorities. The latest investigations by the IFE (as the electoral commission is known in Mexico), in some cases with far-reaching public effects like the scandal known as "Amigos de Fox", show signs and elements of possible links between international and national economic interests in Mexico’s political campaigns. In the same regard, illegal official financing of campaigns, the most renowned case being the one commonly known as "Pemexgate", although not proven, has also not been disproved.
Similarly, a project of reforms to the COFIPE and the General Act on the System to Appeal Electoral Matters has been circulating. It seeks to stop the intervention of the electoral authorities in the internal affairs of political parties by arguing that the right of assembly encompasses a concept of self-determination, self-organization and self-governance, and that these rights cannot be infringed since doing so would curtail freely organized citizens’ right to make their own decisions.
Thus, it proposes to reform Articles 27, 38, 82 and 270 of the COFIPE and add Articles 10 and 79 to the General Act on the System to Appeal Electoral Matters in order to: 1) safeguard the positions of the party leaderships, 2) avoid restoring rights to members when said rights are violated, 3) to sever the means of defense available to citizens that belong to a party, 4) prevent relevant party issues —affiliation, exclusion, candidate nominations, the dismissal of leaders— from being known by outside authorities.54
In other words, the nation’s political parties wish to place their internal functioning outside the reach of the Rule of Law in order to privilege the opacity of public life, furthering the oligarchic development and power of its bureaucracies.
VI. FINAL COMMENTS
The transition towards democracy in Mexico has not ended. The distance and the disillusionment that people feel towards politicians are growing. The question is whether or not these processes can be reversed. From our point of view, we need to rethink the type of democracy we want in Mexico in order to bridge the gap between citizens and politicians. Representative democracy, especially in its audience democracy variant, is not the model that allows the regeneration of the public and politics. It is absolutely necessary to correct the deviations of the representative model and stake on a participatory-deliberative model that can link the citizenry and the public realm.
In this essay, we have proposed some institutional measures that could fix the deficiencies of the audience representative models. These measures need to be included in the Mexican institutional framework to strengthen and activate the participation and deliberation of common issues with the aim of giving the public space the democratic strength that Mexico’s weak institutions and practices need.
The model that is intended to be built, from what has been discussed so far, is not participative or deliberative. The consequence will be, and is, the permanent discredit of politics and the distancing of the citizens from the affairs of the State with a strong dose of political party oligarchization, especially if the proposed reforms that seek to prevent oversight from the electoral authorities are approved.
* Translated by Camilo Montenegro and Carmen Valderrama Ramos.
** Researcher at the Legal Research Institute.
1 García Cotarelo, Ramón, En torno a la teoría de la democracia, Centro de Estudios Constitucionales, Cuadernos y Debates, No. 23, 1990.
2 See Rawls, John, La justicia como equidad. Una reformulación, Barcelona, Spain, Paidós, Series: Estado y Sociedad, 2002; Habermas, Jürgen, Aclaraciones a la ética del discurso, Madrid, Trotta, 2000; and Habermas, Jürgen, Verdad y justificación, Madrid, Trotta, Series: Ensayos filosóficos, 2002.
3 See Rawls, John, Teoría de la justicia, Mexico, Fondo de Cultura Económica, 1985.
4 Habermas, Jürgen, Facticidad y validez, Madrid, Trotta, 1998, pp. 363-406.
5 Nino, Santiago Carlos, La constitución de la democracia deliberativa, Barcelona, Spain, Gedisa, Series: Filosofía del derecho, 1997, pp. 154-198.
6 Ibidem, pp. 166-180.
7 Schumpeter, Joseph A., Capitalism, Socialism and Democracy, New York, Harper and Row, 1962, p. 269.
8 Manin, Bernard, Los principios del gobierno representativo, Madrid, Alianza, 1998, pp. 237-287.
9 Porras Nadales, Antonio, Representación y democracia avanzada, Madrid, Centro de Estudios Constitucionales, Cuadernos y Debates, No. 50, 1994.
10 Ibidem, p. 23.
11 Häberle, Peter, Pluralismo y Constitución, Madrid, Tecnos, 2002, p. 137.
12 An embarrassing event occurred in the Chamber of Deputies in December 2002. The director for the Channel of Congress was bitterly reproached for having facilitated the recording and released images and expressions of legislators and a group of protesters who had violently forced their way into the Chamber.
13 See the Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental [Federal Law for Transparency and Access to Public Government Information] in the Federal Official Gazette dated June 11, 2001.
14 Ibáñez Perfecto, Andrés, "Democracia con jueces", Claves de razón práctica, Madrid, December 2002, No. 128, p. 9.
15 Article 11 of the Federal Law for Transparency and Access to Public Government Information restricts access to political parties’ financial information during review procedures.
16 Haberle, Peter, op. cit., note 11, p. 131.
17 Pettit, Philip, Republicanismo. Una teoría sobre la libertad y el gobierno, Barcelona, Spain, Paidós, Series: Estado y sociedad, 1999, p. 38.
18 Berlin, Isaiah, Cuatro ensayos sobre la libertad, Madrid, Alianza Universidad, 1988, pp. 187-243. The idea of freedom as non-interference has its antecedents in authors like Hobbes, but its more recent theoretical version is due to Isaiah Berlin and his distinction between positive freedom and negative freedom.
19 Pettit, Philip, op. cit., note 17, p. 228.
20 Ibidem, p. 243.
21 Perelman, Chaim and Olbrecht-Tyteca, Lucie, Tratado de la argumentación. La nueva retórica, Madrid, Gredos, 1989, pp. 742 et seq.
22 Habermas, Jürgen, Ciencia moral y acción comunicativa, Barcelona, Spain, Península, 1985.
23 Fiss, Owen M., La ironía de la libertad de expresión, Barcelona, Spain, Gedisa, 1999, p. 14.
24 See the excellent work by Thoreau, Henry D., Desobediencia civil y otros escritos, Madrid, Tecnos, 1987.
25 In 2001, the Interior Ministry carried out the National Survey on Political Awareness and Citizen Practices (ENCUP 2001). Among the more interesting results, published in 2002, is the 55% that said they were little or not at all satisfied with democracy. See also the Latinobarometro Survey of 1996-2002 published by Cima Barometro Iberoamericano.
26 See Giovanni Sartori, "En defensa de la representación política", Claves de razón práctica, Madrid, No. 91, 1999.
27 Flores D'Arcais, Paolo, El País, Madrid, April 20, 2000, quoted by Rubio Carracedo, Jose, "¿Cansancio de la democracia o acomodo de los políticos?", Claves de razón práctica, Madrid, No. 105, September 2000, p. 76.
28 Manin, Bernard, op. cit., note 8, pp. 237-287.
29 Habermas, Jürgen, Facticidad y..., cit., note 4; Nino, Santiago Carlos, op. cit., note 5; and Pettit, Philip, op. cit., note 17.
30 Laporta, Francisco J., "Los problemas de la democracia deliberativa", Claves de razón práctica, Madrid, No. 109, January-February 2001.
31 Ovejero, Felix, "Democracia liberal y democracias republicanas", Claves de razón práctica, Madrid, No. 111, April 2001, pp. 18-30.
32 Fearon, James D., "La deliberación como discusión", in Jon Elster, La democracia deliberativa, Barcelona, Spain, Gedisa, 2001, p. 88.
33 See Araujo Estévez, José Antonio, La Constitución como proceso y la desobediencia civil, Madrid, Trotta, 1994, p. 86.
34 Cronin, Thomas E., Direct Democracy: The Politics of Initiative, Referendum, and Recall, Cambridge University Press, 1989, pp. 126-127 and 225-226.
35 See Ferriz Sánchez, Remedios and García Soriano, María Vicenta, Suiza. Sistema político y Constitución, Madrid, Centro de Estudios Constitucionales, 2002, p. 93.
36 The Special Rapporteur for Freedom of Expression of the Inter-American Commission for Human Rights said in his annual report for 2001 that: "Proper interpretation of international standards, particularly Article 13 of the Convention, leads us to conclude that the right to information encompasses all information, including that which we might term ‘erroneous’, ‘untimely’, or ‘incomplete’. Therefore, any prior conditionality to qualify information would limit the amount of information protected by the right to freedom of expression". The Special Rapporteur continues: "Unquestionably, the right to freedom of expression also protects information that we have termed ‘erroneous’. In any event, in accordance with international standards and the most highly developed jurisprudence, only information found to be produced with ‘actual malice’ is punishable".
37 See Colomer, Joseph M., "Reflexiones sobre la reforma política en México", Este País, Mexico, August 2002.
38 Aragón Reyes, Manuel, "¿Un parlamentarismo presidencialista?", Claves de razón práctica, Madrid, No. 123, June 2002.
39 See the well-known essay by Sartori, Giovanni, Homo videns. La sociedad teledirigida, Madrid, Taurus, 1998.
40 The conflict between the CNI and Television Azteca networks revealed the urgent need to change the concession system for it to be more open, transparent and not controlled by the Executive.
41 Contrary to the above, in an evening edition of the Federal Official Gazette on October 10, 2004, the Executive Branch published the "Regulations to the Federal Law on Radio and Television, on matters of Concessions, Permits and Content of Radio and Television Broadcasts" and the "Executive Order Authorizing the Finance and Public Credit Ministry to Receive Corresponding Tax Payments from Radio and Television Station Concessionaires".
42 Garzón Valdez, Ernesto, "Acerca de la desobediencia civil", Sistema, Madrid, No. 42, May 1981, pp. 83-85.
43 Among others, see Sanchis Prieto, Luis, "La objeción de conciencia como tema de desobediencia al derecho", Sistema, Madrid, No. 59, March 1984; and Peces Barba, Gregorio, "Desobediencia civil y objeción de conciencia", Anuario de Derechos Humanos, Madrid, No. 5, 1988-1989.
44 See Araujo Estévez, Jose Antonio, op. cit., note 33, p. 144.
45 See Arendt, Hannah, Tiempos presentes, Barcelona, Gedisa, 2002, p. 135.
46 See Blanco Valdés, Roberto, "Ley de bronce, partidos de hojalata (crisis de los partidos y legitimidad democrática en la frontera del fin de siglo)", in Antonio Porras Nadales, El debate sobre la crisis de la representación política, Madrid, Tecnos, 1996, p. 197.
47 See Panebianco, Angelo, Modelos de partido, Madrid, Alianza Universidad, 1990, pp. 487-512.
48 Blanco Valdés, Roberto, op. cit., note 46, pp. 191-229.
49 Ibidem, p. 221.
50 See Iñiguez, Diego and Friedel, Sabine, "La prohibición de partidos políticos en Alemania", Claves de razón práctica, Madrid, May 2002, No. 122, pp. 30-40.
51 As cited by Blanco Valdés, Roberto, "La ilegalización de Batasuna", Claves de razón práctica, Madrid, July-August 2002, No. 124, pp. 23-31.
52 See Pinelli, Cesare, Disciplina e controlli sulla democrazia interna dei partiti, Cedam, Padua, Casa Editrice Dott. Antonio Milani, 1984. See also Cárdenas, Jaime, Crisis de legitimidad y democracia interna de los partidos políticos, Mexico, Fondo de Cultura Económica, 1992.
53 This is regarding the Juan Lago Lima case, discussed by the General Council of the Federal Electoral Insitute in many of its sessions. See also, for example, the stenographic version for the session of January 30, 2002.
54 For more information on this, see the Reform Project. Paragraph 2 is added to Article 27 of the Federal Code for Electoral Procedures and Institutions, which would read as follows: "2. It is an exclusive power of the internal bodies of the political parties to interpret their statutes, as well as the normative instruments that these may produce". Paragraph 2 of Article 38 of the Federal Code for Electoral Procedures and Institutions is added and would read as follows: "2. The definitive determinations that political parties adopt in matters of affiliation, suspension, and expulsion of its members; the election, designation or removal of leaders; and the naming of candidates for public office, under no circumstances can be revoked or modified with the aim of forcing them to restore those rights". Similarly, paragraph 2 is added to Article 82, reading as follows: "2. In the exercise of the powers referred to in Clause h) of the preceding paragraph, the General Council cannot interpret the statutory norms of political parties and associations for their application internally, nor can it interfere in petitions regarding the restoration of rights". Additionally, two paragraphs are added to Article 270, reading as follows: "6. The only procedure through which the General Council may learn of alleged violations of this code by political parties or associations is through the present article". "7. The present procedure, in no case, shall seek to restore the internal rights of members of political parties and associations". It also proposes to add a Clause f) to Article 10 of the General Act on the System to Appeal Electoral Matters, reading as follows: "f) when it is intended to contest acts or resolutions of political parties and associations". Lastly, a paragraph 2 and a paragraph 3 are added to article 79 of the General Act on the System to Appeal Electoral Matters: "2. Judgment for the protection of political-electoral rights will not proceed when it is intended to contest determinations adopted by political parties or associations in matters of affiliation, suspension, or expulsion of its members or the election, designation, removal, or naming of its candidates for public office". "3. It will also not proceed in those cases which a citizen intends to refute the resolutions of an electoral authority regarding any of the issues referred to in the previous paragraph".