It appeared discreetly in the official gazette (DOF) on 22 November, set to take effect within 24 hours of publication. President Andrés Manuel López Obrador and other officials said it was no more than a tidying-up operation, destined to cut red tape. But it has caused a storm of protest by business and opposition parties, and possibly, a wave of court cases.
“It” is a decree that was signed by President López Obrador. It allows the government to declare a wide range of public sector investment projects, ranging through airports, railways, and refineries, to be of “public interest and national security”.
Projects within this category must then be given provisional approval by regulatory agencies within five days of presentation. If no response is made, they will be deemed to have received provisional approval. The rule is set to remain in place for a year. Project sponsors will still need to secure the necessary permits but can now do so after the work has begun.
Criticism ensues
A wide range of civil society groups, business associations, and opposition parties quickly condemned the initiative. They suspect it is designed to sweep away regulatory checks, delays, and scrutiny affecting López Obrador’s pet public sector projects, which include the new Felipe Ángeles Mexico City airport, the Tulum airport, the Tren Maya tourist railway, and the giant Dos Bocas refinery in his native state of Tabasco.
Taken together the cost of these projects is around 1% of Mexico’s GDP. López Obrador has been frustrated by delays. Indigenous communities’ opposition to the route of the Tren Maya, for example, has forced it to be changed various times. He still hopes it will be completed by the end of 2023. The Dos Bocas refinery has also been encountering delays.
José Ramón Cossío, a former supreme court justice, described the order as “evidently unconstitutional”. Right-wing opposition deputy Felipe Fernando Macías said it would allow the government to escape necessary scrutiny. Business lobby Consejo Coordinador Empresarial (CCE) said it risked putting some projects “above the law”. The CCE noted that it is for congress, not the López Obrador administration, to declare whether something is or is not an issue of national security.
The Mexican bar association said the rule violates principles of free competition and the separation of powers. The data protection agency (Inai) said it was assessing whether the decree restricted the right to information. Senator Lilly Téllez of the right-wing Partido Acción Nacional (PAN) said she would start a legal challenge adding: “they are going to need a lawyer because we are going to win”.
In response, López Obrador sought to minimise the significance of the initiative. He said it was not even a decree, but purely an internal agreement within government departments to cut red tape and speed up the approvals process. It had nothing to do with transparency, he maintained, since government ministries and departments are required to publish their accounts and remain open to scrutiny.
Concamin criticism
Another business group, Concamin, said the government should reconsider the new decree, which it described as a move that was unconstitutional, caused suspicion over possible acts of corruption, and violated principles of free competition. Concamin also warned that it might be used to avoid competitive tendering.
Loretta Ortiz joins the supreme court
Having received a shortlist of three candidates, the senate voted on 23 November to appoint Loretta Ortiz Ahlf to fill a vacancy on the 11-strong supreme court (SCJN). This was the third time Ortiz had been put forward as a candidate. Ortiz has a strong reputation as an academic but is also politically connected – she is a founder member of the ruling left-wing Movimiento Regeneración Nacional (Morena) of President López Obrador, which is also the largest party in the senate.
In previous senate hearings, some senators questioned whether she had a conflict of interest, since she is married to José Agustín Ortiz, head of the specialised prosecutor’s office for electoral crime (FEDE) and considered to be a close associate of López Obrador.
López Obrador has now appointed four justices in total to the SCJN. To repeal laws or resolve matters of constitutionality, the SCJN requires a special majority of eight out of the 11 justices. This means that, were they to act together, the four justices appointed by López Obrador could conceivably exercise a veto power.