Some time ago the President of the Republic said that governing does not have much science. I did not understand that statement when day by day the very complex problems in so many matters are clear: crime, insecurity, health, poverty, exclusion, informality, just to mention a few. To show a simple question, are the problems that existed when that statement was made already resolved? no, and most are far from being resolved. Today I better understand the presidential declaration of that moment, governing does not have much science if one thinks that reality can be changed based on decrees; on the contrary, it is a very difficult task, if you want to do it well.
On November 22, an Agreement of the President of the Republic was published in the Official Gazette of the Federation, in the evening edition, in which the implementation of projects and works by the Government associated with infrastructure is declared of public interest and national security. in the communications, telecommunications, customs, border, hydraulic, water, environment, health, railways, ports and airports sectors and those that due to their magnitude are considered priority and / or strategic for national development. Based on the foregoing, the same Agreement instructs the government agencies to grant provisional authorization for the start of the project or work within the five days following its presentation, which will be valid for 12 months. The Agreement is endorsed by all the Secretaries of State, except for the Secretary of Foreign Relations.
And so, by evening presidential agreement, the projects and works indicated: i) are for national security (although the Agreement is neither motivated nor based on the National Security Law); ii) they can be awarded directly without bidding (see Law on Public Works and Related Services); iii) information related to these works and projects may be reserved (see General Law of Transparency and Access to Public Information); iv) suspensions are avoided in amparo lawsuits against them (see Amparo Law), and v) they are considered provisionally authorized for 12 months (no matter what it costs us and that the requirements that the laws provide for obtaining those authorizations).
The presidential frustration behind an instrument of this nature must be understood, given the delay in the exercise of the budget, procedures, tenders and administrative complexities of its own Administration; We have been in government for more than three years and these problems and delays cannot be the fault of previous administrations. The pressing need to advance promised works and projects, many of them without previous studies or projects, must also be understood.
But this frustration and necessity oblige the Cabinet to take care of the President of the Republic, the viability of his projects, the permanence of his works, and what he intends to be his legacy. Instead of promoting legal reforms in a Congress where the party in power and its allies have a majority, to lighten or speed up the necessary procedures, or even to avoid suspension in trials in some strategic works, a presidential Agreement was chosen that constitutes a authentic regime of exception to the law, which is based on the idea of national security and is not even based on the law of the matter, which creates figures outside the law such as provisional authorization, and which facilitates opacity and corruption ; in short, that it is contrary to the Constitution and that it does not help the President of the Republic.
The Union Congress and the laws are there for good reasons. Walking a path of exception regime by presidential order does not serve the President of the Republic. On the one hand, it is to be expected that there will be litigation and budgetary and administrative problems that will transcend this Administration and there are no guarantees that they will be defended with the same conviction by the next one. Legitimacy is a fundamental pillar of stability and permanence, and perhaps part of the philosophy behind the Juarista phrase: nothing outside the law; no one above the law.
On the other hand, a greater impact is generated that cannot be ignored. National security is a concept provided for in various administrative laws that justify the intervention of the State, for example, for the extinction or rescue of concessions, or the requisition of communication routes, goods or services in the hands of individuals. It is not an abstract idea, but a concept defined by the National Security Law that must be used responsibly in light of its implications.
Article 3 of said Law indicates that National Security is understood to be actions aimed immediately and directly to maintain the integrity, stability and permanence of the Mexican State, which lead to the protection of the nation against the threats and risks that our country faces. country; the preservation of national sovereignty and independence; the maintenance of constitutional order; the legitimate defense of the Mexican State with respect to other States, and the preservation of democracy, among others. A simple reading of this article of the law can be deduced because it was not used as a basis: it does not seem applicable, and that is a very bad sign for investments at a time when we clearly need them.
Under the idea of national security, it is intended to set aside the law without having the power to do so, and the possibilities that open up, even when one has acted in good faith, are, to say the least, an unnecessary risk.
You have to take care of the President of the Republic. Loyalty implies getting informed, showing you the implications of decisions, the possible impacts now and later, not taking easy paths, without much science and with terrible foreseeable consequences for your own project, whether we share it or not, and the country. The story does not lie. The gradual erosion that derives from non-compliance with the Constitution and the law, with institutional mandates, with the rule of law, does not suit anyone and will see its most serious consequences over time, when they are not in the same position as today to defend them.
Opinion in a personal capacity.
* The author is Professor of Constitutional Law at ELD and member of DLA PIPER Gallastegui y Lozano. Former president of the Federal Institute of Telecommunications.