“Populism distorts the democratic process.” Jan-Werner Müller*
Like all populists, President López Obrador is concerned about constitutional democracy because he wants to rule without checks and balances and in an opaque way, violating the Constitution and circumventing the rule of law with impunity. But why is the president so afraid of the system of checks and balances between state power and transparency? Why are you so concerned that the Supreme Court of the Nation and the National Institute for Transparency, Access to Information and the Protection of Personal Data (INAI) are fulfilling their constitutional function of controlling power?
Supreme Court and INAI make it difficult for the president to rule by decreethat is, without complying with what the Constitution and laws indicate, and without their decisions and the actions of their government being known and carefully scrutinized by the citizens and monitored for their constitutional correctness.
To understand President López Obrador’s discomfort and annoyance with constitutional arrangements for controlling power, it can be very helpful to understand what the presidential agreement, recently invalidated last Thursday by the Supreme Court, meant for his claim to rule by decree.
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The agreement of President López Obrador, which was declared invalid by the Supreme Court, was published on November 22, 2021. INAI challenged it in December of that year because it considered it to be contrary to the provisions of Article 6. constitutional because it was contrary to the right of access to information “as an institutional control mechanism” in a representative democracy, which intruded into its sphere of competence, which could affect its constitutional powers, and expanded the established concept of national security. by law, without the authority of the president.
The Presidential Agreement declares of public interest and national security all projects and activities of his government in fourteen areas of federal government (including communications and telecommunications, energy, health, water resources, environment, tourism and customs, among others), as well as all those considered priority or strategic for national development, and instructed agencies and federal governments to grant temporary permits to obtain, within five business days, opinions, permits, or licenses needed to start projects or public works, bypassing legal procedures and requirements.
In its complaint to the Supreme Court, INAI considered that the agreement not only violated the right to access public informationthan contradicted the constitutional principle of transparency and maximum publicity, which works as a “mechanism for assessing and controlling public authority”, but rather the provisions of Article 134 of the Constitution regarding public procurement and the necessary transparency in them, since it advocated direct awards to the detriment of public auctions.
Minister Rapporteur Juan Luis González Alcantara Carranca felt that INAI was right and proposed that the decree be rescinded because it affected the powers of the institute and the right to access information; In addition, according to him, the authorization regime established in the presidential agreement made it difficult for the authorities to “comply with the obligations of transparency, turning them into ineffective mechanisms guaranteeing civilian control over public actions.”
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The majority of ministers and ministers who are part of the plenum of the court voted for the invalidity of the agreement. This case makes clear why President López Obrador is being thwarted by the Supreme Court and INAI: because, in carrying out their constitutional functions, they are preventing him from carrying out his plan to govern by decree in violation of the Constitution.
While the President denied Friday “morning” that the agreement had the goals and effects indicated in the Supreme Court’s plenary debate, it is clear that, as Minister Javier Linez Potisek pointed out, “it seems somewhat naive.” ignoring the fact that the immediate legal consequences of this statement (contained in the President’s agreement) are two: confidentiality of information and permission for direct trial. So the question to ask the president would be, again quoting Secretary Lines: “If the idea or consequence is not to reserve or allow direct awards, then why a declaration?”
If not, why did the president immediately react to the Supreme Court’s decision with another decree, published just hours after it was issued? A new agreement, also unconstitutional, by which it intends to achieve the same goals as the agreement invalidated by the court (direct decision and opacity in the distribution of contracts in the public sector), although now it is limited to the Mayan Train projects, the Inter-Ocean Corridor from the Isthmus of Tehuantepec and Palenque, Chetumal and Tulum airports. INAI has already challenged the new agreement in the Supreme Court because it violates the suspension of the previous one.
He President López Obrador’s government has not been transparent and bidding for distribution of public sector works and supply contracts. After the agreement was declared null and void, the president intended to declare his administration’s major national security projects that would involve awarding contracts without public bidding—as had already happened in the vast majority of cases over that six-year period—starting with Section 41 of the Act. on Public Sector Acquisitions, Leases and Services and 42 of the Public Works and Related Services Act allows for contracts without public bidding when “national security is at risk”.
INAI’s challenge to the agreement and the Supreme Court’s decision made it clear why the president dislikes both institutions so much. Respecting the rule of law and bringing all of its acts into line with the Constitution will prevent your government from retaining information that should be publicly available by law about the transfer of work contracts and federal government acquisitions.
If your government respected the law and were transparent, this would not be possible, as documented by the Federation Supreme Audit Office, about 80 percent of contracts for the construction, purchase, rental and sale of goods and services to the federal government will be awarded directly, and not by holding a public auction, as it should have been in accordance with the provisions of Article 134 of the Constitution. Transparency in this matter is necessary for public scrutiny of government actions.
This is why President López Obrador is being thwarted and at the same time feared by the INAI and the Supreme Court. Because in this, as in other cases, the Court fulfilled its constitutional function and invalidated agreements that were contrary to the Constitution (for example, in matters of energy and security), and because INAI used its transparency powers to block its path, lack of transparency and corruption in his government. Where was the talk about “brave honesty”?
* Professor of political science at Princeton University. author What is populism?
Source: Aristegui Noticias

John Cameron is a journalist at The Nation View specializing in world news and current events, particularly in international politics and diplomacy. With expertise in international relations, he covers a range of topics including conflicts, politics and economic trends.