|
Next Target: Mexico’s Autonomous Agencies
What Mexico constitutional reform to eliminate the Autonomous Constitutional Bodies means for the rule of law.
BY ANTONIO CARDENAS-ARRIOLA
A proposed constitutional amendment being considered by Mexico’s Congress would eliminate the country’s autonomous constitutional bodies – agencies originally created to make decisions without political influence and conflicts of interest. In the crosshairs are agencies like the Federal Economic Competition Commission (COFECE), the Federal Telecommunications Institute (IFT), and the National Institute of Transparency, Access to Information and Data Protection (INAI).
Following the general elections on July 2, 2024, the National Regeneration Movement (Movimiento Regeneración Nacional) party, or Morena party, secured a supermajority in the Mexican Congress and most state legislatures. This result follows a series of constitutional reforms put in place without broad consensus, raising concerns about the fairness of the process.
In this context, the leader of the Morena party, President Andrés Manuel López Obrador, presented a constitutional reform initiative in February 2024. This initiative aims to eliminate seven Autonomous Constitutional Bodies and transfer their functions to the Executive Branch. The president’s comments on the Autonomous Constitutional Bodies, stating that they were created to protect private businesses against the public interest, indicate what could be considered an ideological bias in this regard.
The constitutional amendment is currently under discussion in the Mexican Congress. However, it is facing pushback from informed sectors of the civilian population, international organizations, and countries, including the US and Canada. These nations have commented that the proposed changes, coupled with the reform of the Judicial Power, could potentially violate the US-Mexico-Canada Agreement and harm their investments in Mexico.
The potential return to the double window process and the loss of highly specialized government may be causes for immediate concern.
The “double window” process, where resolutions of a technical organism can be reviewed and potentially reversed by a political body such as a secretariat, underscores the need for transparency and accountability with high technical decisions in our policymaking.
This could impact governance and the ability to regulate and enforce laws effectively, since the Executive Branch would be accumulating a broad spectrum of powers that were exercised by numerous constitutional bodies in the past.
In a democracy, the autonomy of the branches of government – protected by transparency and a system of checks and balances, is essential – as is compliance with the rule of law. The INAI was designed be a guarantor of access to public information. This body’s constitutional autonomy from the Executive Branch grants it the power to allow access to public information. In that regard, it is similar to the US Freedom of Information Act. Its existence underscores the importance of independence and transparency in a democracy.
The COFECE’s loss of autonomy – since its antitrust functions would be absorbed by the Ministry of Economy – may also present a hinderance to the fight against corruption. A core function of COFECE is prosecuting cartels that affect the competition process. Experience has shown that where there are colluding economic agents, there may also be corruption among public officials, especially in cases related to public tenders.
Thus, the disappearance of COFECE, in addition to a likely loss of public officials of a highly specialized technical body, could also impact the prosecution of corrupt individuals and public servants. The fight against these activities would be left to the Executive Branch alone, without any counterweight, potentially leading to a decrease in the effectiveness of law enforcement.
The antitrust agency that existed before COFECE, the defunct COFECO, faced hurdles in exercising its powers and functions due to the nature of the subordinated body, first to the Commerce Secretariat (Secretaría de Comercio y Fomento Industrial) and later to the Economy Secretariat (Secretaría de Economía), where the new antitrust enforcer is intended to be relocated.
The defunct COFECO experienced troubles with (i) political instructions by the president or secretary of the economy to act or not act in specific sectors and (ii) the absence of a robust legal framework that allows it to display its powers effectively. The lack of autonomy of these agencies made them incapable of implementing enforcement effectively.
Since the creation of COFECE in 2013, there has been an increase in investigations and rulings. Additionally, there has been a rise in fines accrued compared with its predecessor agency.
Additionally, the importance of the counterweights lies in the fact that the existence of these Autonomous Constitutional Bodies and their intersection allows for a comprehensive review of government programs, application of public resources, and, in general, the exercise of government so that their disappearance and concentration in the executive branch would prevent collegial decision making, with plurality and above all alien to political will.
The constitutional reform points to a potential loss of autonomy in counterweights to presidential power, and therefore may present a risk to the rule of law. Mexican history shows that giving so many attributions to an individual may translate into corruption and damage to the rule of law.
Antonio Cardenas-Arriola is a partner with DLA Piper in Mexico City.
RELATED ARTICLE
Mexico’s Judicial Reform: The Implications
