the judgment of the court

Without having entered the merits of the litigation on the effects on the rights of audiences, unanimously the ministers of the Supreme Court of Justice of the Nation (SCJN) invalidated the entire 2017 counter-reform to the Federal Telecommunications Law and Broadcasting for two serious violations of due process.

1) Because the bill to reform the law was not submitted to the consideration of the other review committees to incorporate their observations at least 24 days before the meeting when it was going to be discussed and voted on; Y 2) because said opinion was not published in the Parliamentary Gazette 24 hours before the plenary session in which it was put up for debate and vote.

That is read in the thickening or sentence of the unconstitutionality action 150/2017 and its accumulated 153/2017 promoted, respectively, by 47 senators and by Alejandra Barrales in her capacity as then National President of the Party of the Democratic Revolution (PRD).

The unconstitutionality action was joined by the amicus curiae of María Elena Estavillo and Adriana Labardini (then commissioners of the Federal Institute of Telecommunications (IFT), who voted in a minority for the regulator to present their own constitutional controversy before the Supreme Court) and of the civil society organizations Fundar and the Mexican Association of Audience Defenders (AMDA).

The file took more than five years to resolve because it received a series of allegations against it from the Chamber of Deputies, the Senate, the Presidency of the Republic and the Attorney General’s Office, which asked the highest court to dismiss the case. .

They did manage to dismiss (suspend) the letter of the PRD president for lacking legitimacy, but not that of the minority of dissident senators, despite the fact that two days after its presentation six of the 47 senators presented a letter of withdrawal, but the legislators did not come to ratify it and, for that reason, it continued to be processed and the original demand was admitted.

Throughout 137 pages of the ruling, the rapporteur minister Alberto Pérez Dayán elaborates on the violations of due process during the ruling and voting on the initiative to counter-reform the rights of audiences, but at no time does he delve into the litigation.

The three concepts of invalidity were that the contested decree 1) violates the principle of progressiveness of fundamental rights, in its non-regressive aspect, provided for in article 1 of the Constitution, and suppresses the sanctioning powers of the IFT in matters of defense of the hearings; 2 the legislators did not carry out a proportionality test and 3) there were violations of due legislative process, which prevented the effective participation of the different political forces. The entire sentence is focused on this last concept of invalidity.

In the thickening it is recognized that the 2017 counter-reform to the LFTR was presented as a solution of the Legislative Power -without waiting for the resolution of the Supreme Court in the other two constitutional controversies: 34/2017 and 35/2017- to the challenge that they made to the General Guidelines on the Defense of Hearings, issued by the IFT on December 21, 2016.

These guidelines (which went through a public consultation process, regulate and regulate the rights of the audience) provoked a barrage of questions from the commercial media, their hosts and communicators, most of them with uninformed and malicious comments and opinions, against the IFT.

The senators endorsed the counter-reform to audience rights to ingratiate themselves with radio broadcasters, but through a flawed and undemocratic legislative process, which caused the SCJN to declare its absolute invalidity, even without going into the substance of the issue.

As can be seen from the analysis of the sentence, the ministers did not want to enter into the central points of the challenged counter-reform: that the IFT’s powers to sanction and monitor the rights of audiences were limited; They also did not review that the precautionary suspension of transmissions that affect the child population was eliminated; neither is the transition from a regulation model supervised by the IFT to one of self-regulation of the concessionaires.

Nor did the Court analyze the unconstitutionality of each concessionaire freely issuing its code of ethics without being subject to review by the IFT. Or, the validity that broadcasters freely designate the defender of the audience without the regulator having the power to intervene.

The ministers said nothing -as the electronic media and not a few journalists in the press unfoundedly propagated- about the obligation of concessionaires to refrain from transmitting publicity or propaganda presented as journalistic or news information; or that the news information is clearly differentiated from the opinion of the person presenting it.

However, it is valuable that the sentence recognizes that “the rights of audiences imply a much broader projection of the human right to freedom of expression in terms of those prerogatives that assist the recipients (general public) of public services of broadcasting provided by concessionaires”.

The conclusion of the SCJN was that the 2017 counter-reform “seriously violates the rights of the audiences because since the parliamentary conception of the legal reforms there have been serious violations of due legislative process that cannot be validated with a simple vote in plenary, since they do not it is possible to endorse the legislative haste where only a few hours before the vote on the legislative reforms in the Senate Plenary, in an extraordinary meeting called anomalously by three of the four secretaries of the ruling Commission, a meeting in which the members of the United Commissions claimed to be unaware of the content of the opinion that, moreover, was not published in the Gazette or previously delivered to the members of the commissions, the Plenary approved reforms of great importance in contravention of the rights of the audiences, taking into account that the United Commissions and the Plenary of the Senate voted without knowing the content and scope of the re contested form”.

Be careful, because the exact same thing could happen to President AMLO’s electoral Plan B if, in an unconstitutionality action, the opposition deputies document that the package of reforms to the electoral laws did not comply with due legislative process and was undemocratic.

Twitter: @beltmondi