Votes in the SCJN, key to the future of the electricity sector and legal certainty in the country; a tough test of the effectiveness of constitutional control: Santamarina and Steta

• Judicial train at full steam that joins the train of the majority bloc in Congress.
• District Judges and Collegiate Courts attentive to the exercise of resolving amparos. 

CDMX. April 6, 2022. Experts from the law firm Santamarina and Steta They highlighted the relevance of the debate that is currently taking place in the Supreme Court of Justice of the Nation (SCJN), regarding the constitutional controversies and the action of unconstitutionality initiated in relation to the reforms to the Electricity Industry Law (LIE) and the concept of constitutional control.

Juan Carlos Machorro, an expert partner in energy sector law, pointed out that the work to be carried out by the Court in reviewing the project presented by Minister Loretta Ortiz constitutes a great opportunity for the Court to reiterate its highly relevant role in matters of constitutional control, beyond political ideologies or personal positions.

“It is essential that the Court assumes its role as guardian of constitutionality in our country; these issues require a broad vision and a purely constitutional analysis, beyond political likes and dislikes and the immediacy of the elections.” he claimed.

The expert explained that this exercise tests the effectiveness of the rules on constitutional control, built on a presumption of constitutionality in the norms emanating from the legislative power, requiring therefore a qualified majority (eight votes out of 11 ministers) to declare unconstitutionality with general effects. "The problem is that the reform to the LIE is clearly unconstitutional on several fronts and now a qualified majority needs to be gathered to declare it as such. In this way, the 'constitutionality' of something that is clearly not so could be declared," he pointed.

For its part, Mariano Calderon, an expert partner in constitutional law and amparos, stressed that although the discussion regarding the constitutional controversy and unconstitutionality action will define the SCJN's criteria regarding the LIE, the amparos that the companies promoted individually against the same LIE will be resolved with a different mechanism, according to the vote of a simple majority of such ministers."If 7 or 6 ministers consider the LIE unconstitutional, that is enough for the District Judges and Collegiate Courts to 'follow' that majority and grant the amparos on the basis that the LIE does violate the constitution," said.

The expert explained that the debate regarding the unconstitutionality of the LIE at this time revolves around three different mechanisms of constitutional control, namely: action of unconstitutionality, constitutional controversy and amparo trial. The first two require a qualified majority of 8 ministers, while the amparo trial only requires a simple majority. The first two, if they win the vote, have general effects (the corresponding norm ceases to have effects for the entire country), while for the amparo, in such a scenario, those effects disappear only for the companies or individuals who promoted them.

“Many things can happen during the discussions of the SCJN and it may be necessary to vote on the various parts of the reform to the LIE. The Ministers will not necessarily resolve 'all or nothing', but will go topic by topic, article by article, and it may be the case that they declare 'X', 'Y' and 'Z' unconstitutional, but 'A', 'B' and 'C' constitutional”, concluded.  

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