Mexico Supreme Court blocks challenge to electricity reform law, raises questions of judiciary independence

MEXICO CITY (CN) — A ruling by Mexico’s Supreme Court on Thursday blocking a challenge to the president’s proposed electricity reform raised questions about the court’s impartiality.

Four of the court’s 11 ministers voted in favor of the law, a move which negated the other seven opinions that it violates Mexico’s constitution. At least eight members of the court needed to vote down the law for it to be deemed unconstitutional.

The main issue under debate was the constitutionality of the purchasing preference the law gives to the Federal Electricity Commission (CFE). 

In his opinion before the court, Minister Jorge Mario Pardo Rebolledo said the law “generates a barrier to competition” and that it does not guarantee that prices will benefit the average electricity consumer. 

Conversely, Minister Yasmín Esquivel Mossa argued competition from the private sector impedes the productivity and effectiveness of the CFE. Esquivel is one of four Supreme Court ministers appointed by President Andrés Manuel López Obrador. 

While only three of those appointees made up the four blocking votes in Thursday’s session, the ruling appeared to validate concerns that Mexico’s executive branch had exerted undue influence over the judiciary. 

“Democracy is faltering everywhere in Mexico,” said constitutional law expert Elena Brito Casales, who added that it appears that the president has exerted power over the judiciary beyond his own appointees.

Minister Ana Margarita Ríos Farjat was the only López Obrador appointee to vote for the unconstitutionality of the law, saying: “Although the decisions of the constitutional courts affect public policy, they do so based on constitutional review, not on any policy choices the court may make. The Supreme Court cannot aim to choose which public policy is best.”

The votes tallied 7-3 against the reform when it came time for the deciding opinion of Chief Justice Arturo Zaldívar, a minister appointed in 2009 by President Felipe Calderón. Zaldívar voted in favor of the reform.

“Democracy is at stake due to the way ministers are chosen,” said Brito. “There’s partiality.”

But the court isn’t the only area of concern in Mexico’s government. 

On Wednesday, four U.S. senators expressed their concern over partiality in Mexico’s federal prosecutor’s office in a letter to Secretary of State Anthony Blinken and Attorney General Merrick Garland, The Associated Press reported.

In the letter, Senator Bob Menendez, chairman of the Senate Foreign Relations Committee, and three of his Democratic colleagues urged the Biden administration to discuss the issue with their counterparts in Mexico. They accused Mexico’s Attorney General Alejandro Gertz Manero of conducting legal actions they deemed to be “personal vendettas” against opponents of President López Obrador. 

López Obrador addressed the accusations in his morning press conference Thursday by calling the senators “liars” and implying that their criticism was politically motivated.

Thursday’s Supreme Court decision pertains to just one of hundreds of cases brought against the proposed reform, so the law still has many more hurdles to jump before it can be implemented. 

One important case is one brought by Greenpeace Mexico, according to Gonzalo Monroy, managing director at the Mexican energy consultancy GMEC. 

The cases heard Thursday dealt with the law’s hindering of economic competition, but Greenpeace’s suit is based on the article in the Mexican constitution guaranteeing a clean, healthy environment as a human right, giving it a more general reach than other cases. 

“Today’s ruling is important, yes, but this movie isn’t finished yet,” said Monroy. 

Critics of the reform cite its cutbacks on renewable energies, giving preference to petroleum-based energy instead of wind, solar and other cleaner alternatives.

“This is a marked step backwards from the advances Mexico made at the forefront of public policy at the international level,” said Jesús Carrillo, director of sustainable economy at the Mexican Institute for Competitiveness. 

The 2013 energy reform that the current law is attempting to undo clearly promoted investment in renewable energies, and Thursday’s ruling represents another step toward reversing the advances of the last decade, he said. 

It also puts Mexico at risk of missing out on the benefits of clean energy technologies to come. 

“Any way you look at it, the application of this reform will be negative for Mexico, both in terms of the environment and the economy,” he said.

The proposed reform is also very unlikely to lower energy costs for average Mexicans. If prices do come down, Carrillo said, it will not be due to an improved or more efficient system, but rather because of increased government subsidies for electricity.

Courthouse News correspondent Cody Copeland is based in Mexico City.

Follow @copycopeland

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