Mexico. The Institute of Telecommunications Law, IDET, expresses its formal concern about the alarming interference of the State to the detriment of the exercise of freedom of expression, both in radio and open television, and in restricted television, derived from an erratic sentence issued by an administrative judge.
The ruling of the amparo in revision 499/2020 approved on May 12 by the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) validates the sentence issued by the First District Judge in Administrative Matters of Mexico City that seeks to restore the validity of the Guidelines on Defense of hearings issued by the Federal Institute of Telecommunications (IFT) in 2016 and orders the "revivscence" of a portion of Article 256 of the Federal Law on Telecommunications and Broadcasting (LFTR), repealed by the Congress of the Union in 2017.
The IFT Guidelines that the Judge intends to revive, despite the fact that they were duly abrogated by the Congress of the Union to avoid censorship of public and private media, among other worrying aspects, establish a regime of editorial control by a committee that can order the suspension of transmissions of a radio or television station, if, in his opinion, any person in front of a microphone does not "clearly differentiate the news information from the opinion of the person presenting it". It also provides that the suspension of transmissions will be made ex officio or at the request of a defender of the hearings, whose appointment must be approved by the IFT itself.
The attack on freedom of expression for public and private media and the INVASION of powers by the IFT in the Guidelines were so serious that after their promulgation, both the Senate of the Republic and the Federal Executive were forced to promote constitutional controversies to prevent them from entering into force.
The SCJN refused to analyze the constitutionality of the IFT Guidelines in constitutional controversies 34/2017 and 35/2017, promoted by the Senate and the Federal Executive Branch, determining that they had been abrogated. Even so, now, without studying the guidelines and their harmful effects, the Second Chamber validated the sentence of the District Judge that intends to "revive" them and repeal the 2017 reform that abrogated them.
The Judge incurred in the excess of obliging the Congress and the President, to annul, in 30 days, the second and third paragraphs of article 256 in force, so that the old second paragraph of said article "resurfaces". Based on this, it empowers the IFT to set a date for the entry into force of the controversial Guidelines, or to issue new ones.
It is clear to IDET that a District Judge can invalidate a rule and expel it from the legal sphere of the complainant, but he cannot under any circumstances force the Legislative and Executive Branches to carry out a process of annulment that is not provided for in the Constitution or in the laws governing the legislative procedure.
In accordance with the principles of competent authority and legality, the authorities can only do what the Law orders them and the Constitution, in its Article 72 subsection F, clearly and indisputably states that: "In the interpretation, reform or repeal of laws or decrees, the same procedures established for their formation shall be observed." Consequently, the procedure cannot be other than the legislative process with all its formalities, in which Congress has full freedom to define the rights of the hearings in accordance with the exclusive power conferred on it by Article 6 of the Constitution.
The legislative procedure involves the exercise of the right of initiative under Article 71 of the Constitution, and judges clearly lack this right. The sentence that is intended to be fulfilled implies an invasion of powers in contravention of Article 49 of the Constitution, which expressly states that "two or more of these Powers may not be gathered in a single person or corporation, nor may the Legislative be deposited in an individual."
Finally, the judicial decision contravened the principle of relativity of amparo judgments and gave general effects to the ruling when there is no legal basis for it, since only a qualified majority of eight ministers of the SCJN can declare the general unconstitutionality of the laws.
By virtue of the foregoing, the IDET makes a respectful call to the H. Congress of the Union not to validate the multiple excesses incurred by the First District Judge in Administrative Matters of Mexico City and, on the other hand, to formally manifest the legal and material impossibility to comply with the enforcement conduct.
Text published by the Institute of Telecommunications Law, IDET.
