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Creative vote count raises more concerns over independence of Mexico Supreme Court

Constitutional law experts called the way in which the Supreme Court ruled on President López Obrador’s electricity reform “unusual” and said it opened the door to international litigation.

MEXICO CITY (CN) — An unprecedented manner of counting votes during a hearing on a proposed electricity reform bill is once again raising questions about the independence of Mexico's Supreme Court.

The court blocked a challenge to President Andrés Manuel López Obrador’s electric reform law in early April, but the controversial case made waves again Tuesday after the newspaper Reforma reported findings of funny business in the final vote count. 

Brought by senators who oppose López Obrador’s reform, the challenge claimed the law violates, among other articles of the constitution, Mexicans’ rights to economic competition and a clean, healthy environment. 

The Supreme Court’s rules and procedures require a majority of eight votes to deem a law unconstitutional. Chief Justice Arturo Zaldívar closed the hearing held on Apr. 7 by ruling that four ministers had voted in favor of the reform, blocking the challenge to its constitutionality. 

That ruling is now in doubt, as Tuesday’s analysis says that two of the bill’s most contentious articles should have been found unconstitutional. 

At issue are articles that aim to grant the Federal Electricity Commission first purchasing rights to all electricity in the country and give it the green light to establish a model of unit cost pricing for the sale of electricity. The latter would pass infrastructure costs to consumers, which critics say would make electricity more expensive in Mexico. 

The constitutional law experts who spoke to Courthouse News explained that there were eight votes for the unconstitutionality in terms of these two articles. Six of these votes came from ministers who agreed that both articles violate Mexico’s constitution. 

The other two votes came from ministers who deemed the reform unconstitutional for different reasons. Minister Juan Luis González ruled that the reform violates the constitution in terms of economic competition, but not in terms of the human right to a clean, healthy environment. 

Minister Alfredo Gutiérrez, on the other hand, ruled that the reform violates the constitution in terms of the environment, not in terms of the economy. 

When Zaldívar made the final tally, he ruled that since there was not a total of eight votes for either one reason, the majority vote for unconstitutionality of the reform did not reach the threshold of eight necessary to deem the law invalid. 

“We’ve never seen anything like this in the history of the court,” said Sergio López Ayllón, a research professor in the law department at the Mexico City-based government think tank CIDE. 

López, who apologized for the “baroque” nature of the judicial system in Mexico, said that the onus falls on Zaldívar, who “induced the vote so that it was conducted in a manner wholly different from the usual way it’s done.” 

Zaldívar voted for the constitutionality of the reform on all terms. 

“There is a generalized perception that Zaldívar usually votes in favor the projects of President López Obrador. This ruling speaks to his political orientation, which clearly should not be visible in his decisions,” said López. 

Rodrigo Brito Melgarejo, a constitutional law professor at Mexico’s National Autonomous University (UNAM), also called the count unusual and said there was a “clear intention to not reach the eight votes” necessary to deem the law invalid. 

“The message this sends is that the Supreme Court, in one way or another, is giving in to pressure from other governmental entities — specifically the executive branch — which is putting into question the independence of the highest tribunal in the country,” said Brito. 

Javier Martín Reyes, a researcher at UNAM's Legal Research Institute, had harsher words for the vote count, calling it a "genuine scandal" and a deliberate decision by the court to keep from tallying the eight invalidating votes.

"It reveals that Mexico, unfortunately, is far from having a justice system of high standing," he said.

On Tuesday, independent Senator Emilio Álvarez Icaza petitioned the court to review the count, but the court remained firm in its decision and did not clarify or expound on the ruling in any way. 

The ruling now opens up Mexico to litigation from international entities that have a stake in the country’s energy sector. López, from CIDE, said that foreign companies will be able to establish arbitration panels on grounds that the reform violates the terms of the United States-Mexico-Canada Agreement, the free trade treaty that replaced the North American Free Trade Agreement in July 2020. 

“What lie ahead now are lots of litigations. The problem wasn’t resolved,” said López. “They didn’t get enough votes to declare the reform unconstitutional, but the challenges are going to continue.”

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