The Supreme Court of Justice of the Nation (SCJN) admitted for processing the constitutional controversy filed by the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI), against the Presidential Agreement on infrastructure projects and granted a suspension that prevents, for now, the federal government from reserving information on such works.

In constitutional controversy 217/2021, the SCJN determined that, while ruling on the merits of the matter, “the suspension requested by the National Institute of Transparency, Access to Information and Protection of Personal Data is granted,” only for purposes that the information of the so-called megaprojects is not classified as national security.

“The suspended measure granted will take effect immediately and without the need to grant any guarantee, without prejudice to the fact that it may be modified or revoked derived from any supervening event,” he mentioned.

Permits are maintained

In its first resolution on this matter, the SCJN denied INAI the suspension on considering government infrastructure projects as national security.

The foregoing leaves intact other provisions of the Agreement, such as the one that provides for express permits to carry out the works.

And it is that the second article of the Agreement specifies: “The dependencies and entities of the Federal Public Administration are instructed to grant provisional authorization to the presentation and / or obtain the opinions, permits or licenses necessary to start the projects or works to referred to in the previous article, and thereby guarantee its timely execution, the expected social benefit and the exercise of the authorized budgets ”.

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Authorizations will be issued within a maximum period of five business days; If this period passes and there is no resolution, it will be understood as positive, it is indicated.

The Agreement adds that the permits will be valid for 12 months while the final authorization is resolved.

On December 9, the INAI presented a constitutional controversy before the Supreme Court over the presidential Agreement of November 22, which declared the infrastructure works of the federal government in the communications, telecommunications, customs, border, hydraulic, and water sectors, environment, tourism, health, railways, railways in all its forms, energy, ports and airports, as well as national security.

At the time, President Andrés Manuel López Obrador stopped criticism from opposition sectors, by ensuring that the Agreement has the purpose of “speeding up procedures (and) so that the works are not stopped.” He argued that security and trust will be guaranteed to the participating companies.

In its analysis within the constitutional controversy, the INAI warned that the Presidential Agreement violates the principles of constitutional supremacy and legality, because it makes an early and generalized reservation of information related to those projects or works, violating the right to know of society .

Agreement does not violate powers of the Senate: Sánchez Cordero

The president of the Board of Directors of the Chamber of Senators, Olga Sánchez Cordero, reiterated that the Presidential Agreement that declares of public interest and national security the projects and infrastructure works that the federal government considers priority and strategic for national development does not invade competences of the Upper House.

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“Well, it is not noticed that it contains, nor does it intend to exercise any of the powers established by articles 73 and 76 of the Constitution,” he said.

Sánchez Cordero clarified that the aforementioned Agreement is different from a decree, since the main difference lies in the fact that “while in the agreement the head of the Executive determines administrative functions and subordinate instances, the decree, for its part, formalizes the legal expression of the will of the Executive in the exercise of its functions, but on concrete and specific cases ”. (With information from Rolando Ramos)

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