A “Paradigm Shift” in Mexican Anticorruption Law?

Problems of corruption and graft are not new in Mexico. Recently, the Mexican elite political class has been implicated in a series of real estate scandals that reached all the way to President Peña Nieto. Most notably, President Nieto and his wife have been accused of impropriety in their purchase of a 7 million dollar mansion—dubbed by the press “la Casa Blanca” (“the White House”)—from a wealthy government contractor. While not directly related, Nieto’s presidency has also been rocked by protests surrounding the disappearance and presumed death of 43 students in Guerrero. Local officials appear to have been involved in the disappearances, and the official investigation is widely viewed to have been botched.

But in the midst of all this (and arguably because it), Mexico managed to pass one of the most sweeping anticorruption reforms in recent memory. In April and May of last year, the Mexican legislature passed and the state legislatures approved reforms to 14 articles of the Mexican Constitution. Conceived of and spurred on by Mexican civil society groups, these reforms bolstered existing anticorruption institutions and created whole new ones.

The reaction to these reforms has ranged from excitement and enthusiasm, to cautious optimism, to cynical dismissal. (President Nieto, for his part, has hailed them as a “paradigm shift” in the Mexican fight against corruption.) These changes to Mexico’s constitution are only the first step in the country’s much needed systemic reform. Their success will depend substantially on secondary enabling laws to be enacted sometime before June 2016. But it’s worth stopping now to analyze what these reforms get right, and what they fail to address.

Mexico’s constitutional reforms involved several major institutional changes. (See here, here, and here). First, they created an overarching National Anti-Corruption System (NAS), designed to oversee and help coordinate anticorruption reform at the national, state, and local levels. Second, they reformed the Superior Auditing Office (SAO), allowing investigation of financial improprieties during the same fiscal year and the monitoring the use of federal funds allocated to states and municipalities. Third, they established the Federal Tribunal of Administrative Justice (FTJA), derived from the existing Federal Tribunal of Fiscal Justice and Administration, as an independent constitutional court specifically designed to adjudicate claims of corruption and grave administrative misconduct. And fourth, they obligated the states to create tribunals of administrative justice themselves.

These reforms, taken together, get a number of things right:

  • First, the reforms focus on addressing systemic corruption in the Mexican administrative state. In the past, Mexico (like many other Latin American countries) has been criticized for focusing too heavily a “corruption czar” model, rather than addressing this sort of systemic administrative corruption (pervasive in, among other places, Mexico’s tax administration, customs administration, and procurement procedures). As part of an early constitutional reform in 2014, the country already created a special prosecutor’s office for corruption cases. Instead of simply appointing another top corruption official, the 2015 reforms include a framework for investigating instances of administrative liability through existing bodies, with minor offenses investigated by internal control bodies, while more serious offenses will be investigated both internally and by the SAO. The NAS also includes a Coordinating Committee with members from the special prosecutor’s office, the SAO, the president of the FTAJ, and others. The purpose of this coordination effort is to ensure that cases no longer fall through the cracks, and to monitor whether the new system is being implemented correctly. All this has the potential to curb systemic corruption in Mexico’s administrative state.
  • Second, the reforms use federal authority to address problems at the state and local levels, where much of the corruption in Mexico takes place (often in the form of petty bribes called “mordidas” (“bites”) to public officials, most commonly local police). The Mexican constitutional reforms take substantial steps to tackle this sort of local corruption. First, they extend the authority of the SAO and FTJA to investigate and adjudicate of claims involving the use of federal funds at the state and local level. This brings more local corruption cases under federal enforcers (which may be more effective) and federal courts (which may be both more reliable and more sympathetic to claims involving misuse of federal funds). Second, by obligating states to create independent judiciaries of their own, the constitutional reforms require state authorities to engage with anticorruption enforcement, bringing increased attention to the issue and (hopefully) providing a more objective venue for those claims to be adjudicated. (See here for a discussion of reforms in the state of San Luis Potosi prompted by the national level reforms.) While this will not solve state-level corruption, these reforms seem to be a move in the right direction.
  • Third, the reforms increase both judicial independence and judicial accountability. By establishing a constitutionally independent court specifically to fight corruption, with fixed terms and removal for a limited set of offenses, the reforms decrease the potential for outside influence on the judiciary—an important step in a country that suffers from rampant judicial corruption. The reforms also bring the judiciary under the investigative authority of the SAO. While this might seem to undermine judicial independence, in fact it may have the opposite effect: An independent body will be able to look into the FTJA’s spending, discouraging judges from taking bribes, and will also limit the ability of private parties and government officials to exercise inappropriate influence over the courts.

All that said, these encouraging steps should not be heralded as the salve to all of Mexico’s corruption woes. The reforms do little to address the alleged culture of impunity in the upper echelons of power. For instance, as many critics have emphasized, the reforms do not ban the “fuero,” or constitutional immunity for the President and other legislators, except in instances of felony or treason. But the problem goes deeper than that:

  • First, although the SAF may be independent of state-level authorities, the judiciary, and members of the administrative state, it remains too dependent on the Chamber of Deputies, which appoints the SAF’s head. For example, on my reading of the constitutional amendments, contemporaneous investigations of public spending–arguably one of the SAF’s most powerful tools to detect and deter corruption–requires the head’s approval.
  • Second, the Special Prosecutor’s Office (SPO) remains vacant, with no top official named to run the organization after nearly two years since its creation. The Senate has appointment power over this position, and thus far has failed to fill it. Further, if and when the Senate eventually appoints someone, it’s unclear whether she will be objective to towards those who appoint her–especially given Mexico’s history of appointing officials with conflicts of interest. (For example, President Nieto seems to have avoided meaningful inquiry into his Casa Blanca transaction by appointing a former college classmate to head the investigation.)

These are serious and likely enduring concerns, and it’s hard to believe Mexico will rid itself of the specter of corruption without addressing them head-on. There is much more work to be done to address high-level corruption in Mexico’s national political elite. That said, last year’s constitutional reforms should be celebrated for the types of corruption they do make strides in addressing: corruption within the administrative state, corruption at the state level, and corruption in the judiciary.

7 thoughts on “A “Paradigm Shift” in Mexican Anticorruption Law?

  1. Thanks for a great, informative post. The idea of the FTJA (and its potential state equivalents) seems like a huge step with a fair amount of thought being given to how such an entity should be created. I am perhaps a bit skeptical of seeking both accountability and independence at the same time. Recently there was some reporting about research on the statistical likelihood of and time taken for conspiracies being exposed given the number of people involved in a cover-up. (http://www.livescience.com/53494-how-to-tell-if-conspiracy-theories-are-real.html) I wonder if the same idea would apply to accountability mechanisms — that the more an accountability effort is spread to broader areas and more people, the more likely a breach would be. That being said, I’m not sure if, having to choose one, accountability or independence ought to be more important for a court. One other thought: Without getting into the perennial top-down or bottom-up approach debate, do you think the reforms should have addressed high-level corruption at the same time? Or does that need to be an entirely separate effort?

  2. Thanks for a great post! I wanted to raise the general who-will-guard-the-guards question. You mention that the reforms include federal oversight of state and local government actors. Are there reasons to believe that public servants are less corrupt, and therefore useful watchdogs, as compared to local government officials? On a related note, are there mechanisms within the proposed reforms to prevent corruption from infiltrating these new oversight agencies?

  3. Courtney, you make a really nice point that the constitutional reforms’ focus on less “glamorous” and more systemic corruption (in administrative, state, and judicial entities) is a good sign. It’s also interesting that civil society played a large role in achieving these changes – I’d love to know more about these activities.

    As you and the other commenters have indicated, there is still a concerning level of impunity at the top of the political hierarchy. But I suppose we can’t expect global reform all at once. My question is: do you think there is even enough political will amongst the federal government’s leadership to implement the constitutional changes? Mexico’s formal anti-corruption laws have been pretty robust for a while and they clearly haven’t done the trick. Also, as you describe, the SPO remains empty after the 2014 constitutional reform. The proper legal infrastructure is necessary to fight corruption but it is wholly insufficient if no one uses it. So what is different this time around? I’ll be curious to see what the Senate and the Chamber of Deputies do over the next six months with respect to the implementing legislation.

  4. Very interesting post. Like the other commenters, I have some concerns that what might politely be called personnel issues will persist even if the institutions you discussed are implemented in the most effective way possible. It seems that, again and again, countries that are seeking to implement more robust anticorruption regimes focus on either personnel or institutions where both are needed for long-lasting improvement.

    Still, I am inclined to think that if both personnel and institutions cannot be addressed together, it is better to develop institutions first. My rationale is that even the best personnel cannot effect change without a framework to operate within. Of course, I think reasonable people could disagree on this point–and we have certainly seen powerful personalities succeed in implementing anticorruption regimes without the institutional support many would think necessary.

    Do you know if there are any people who might help fill the personnel gap as you have described it in Mexico? Are any of the civil society groups suggesting particular people for particular jobs? Certainly, support from some civil society groups may make it less likely that a person will get the job, but maybe giving civil society groups a role in appointment is an institutional change that can springboard the personnel development necessary to implementing real change.

  5. All this talk about civil society groups, in your post and the comments, definitely has me curious to know more about their role in this process and their visions of the future.

    The idea of what level of the political system–national, state, or local–is best situated to be the enforcer or the intervention point for anticorruption reforms is one I find pretty fascinating. suppose it varies from country to country. The national approach has a lot of intuitive appeal, since it could be more uniform/systemic, but in some places, reformers have thrown up their hands at the prospect of tamping down corruption at the national level and tried to sidestep problems there by focusing on local levels. It sounds like Mexican legislators and civil society groups believe the national level is best placed to adjudicate and investigate corruption problems. You mention high-level impunity still existing, though, which seems like it could be a limiting factor–unless the abuse of that impunity is only among a select group of individuals, or corrupt high-level officials are willing to enforce anticorruption methods on lower levels of government because they feel safe from the repercussions moving up to their level. Also, if lower-level corruption is so rampant, do you get a sense that the SAO and other anticorruption institutions will have the financial (and other) resources and the will to devote the necessary energy and time to tackling the problem?

  6. Pingback: As Latin America’s citizens become empowered, tainted leaders come under fire | Pakistan Chronicle

  7. Pingback: When and Why Do Corrupt Politicians Champion Corruption Reform? A Character Study | Anti Corruption Digest

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