On October 23, 2019, I published in this space an article entitled “Evaluation Committee: Does it exist?”, in which I raise the issue of constitutionality that, in my opinion, affects the very existence of the Evaluation Committee referred to in the article. article 28 of the Constitution. This committee was expressly designed so that the candidates for commissioner of the Federal Economic Competition Commission (Cofece) and the Federal Institute of Telecommunications (IFT) were subjected to a rigorous examination that guaranteed their preparation and technical capacity in competition and telecommunications matters. The legal problem arose from the irresponsible educational counter-reform promoted by López Obrador to return control of education to the teachers’ unions and the central bureaucracy, thus eliminating the National Institute for the Evaluation of Education (INEE), which was the autonomous body that was in charge of evaluating the performance of our educational system.
A collateral damage of the educational counter-reform and a direct consequence of the destruction of the INEE consists of the probable extinction of the Evaluation Committee. In accordance with article 28 of the Constitution, the Evaluation Committee is made up of the heads of the Bank of Mexico, the National Institute of Statistics and Geography and the INEE. Since 2019, several lawyers have raised the constitutional question about the very existence of the Evaluation Committee. The legal-constitutional question is: with the disappearance of one of its constituent elements, does the collegiate body known as the Evaluation Committee also disappear, or does it maintain its legal existence regardless of the absence of one of its members?
As I wrote then, the question has its pitfalls, since the Constitution itself allows decisions within the Committee to be taken by majority vote, and, in the event of a tie, the chairman of the Committee, who will be the head of the entity with seniority in office, will have a casting vote. With this wording, it is perfectly valid that only two members of the committee, in a duly convened session, can make a legally valid and binding resolution. However, this does not resolve the question originally posed: can the Evaluation Committee constitutionally exist if one of its three constitutionally mandated members ceases to exist? One thing is the mechanism for an existing collegiate body to adopt its resolutions and quite another is the very existence of that body. However, the operating bases of the Evaluation Committee issued by it on September 1, 2017 should not be overlooked and in which it is expressly allowed to meet with only two of its members.
What in 2019 was a theoretical dissertation today has gained transcendental relevance since President López Obrador has expressly disregarded the existence of the Evaluation Committee and refuses to propose to the Senate candidates for commissioners for Cofece and IFT. However, López Obrador himself already consented to the existence of the committee by having appointed several commissioners following this procedure, even after the disappearance of the INEE. It seems that for López Obrador the Evaluation Committee exists only if he, in his infinite greatness, deigns to look at it. If he doesn’t look at it, then it doesn’t exist.
The continuous capricious application of the law by the López Obrador government, which affirms something and shortly afterwards maintains the opposite, based on its particular or group interests, only highlights the fragility of our rule of law and its submission to the interests of the government. It is clear that López Obrador does not like the Evaluation Committee because none of his primates with 10% capacity would have the slightest chance of passing that exam, and that, gentlemen, is the committee’s very reason for being: to prevent politics from corrupt the technical work and autonomy of regulators.
@gsoriag
President of IDET
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Lawyer specialized in regulated sectors. President of the Telecommunications Law Institute (IDET). Doctorate in modern letters at the UIA.