Ernesto Villanueva / diario19.com / Baker Institute / Houston Chronicle
Mexico’s Senate is currently discussing the National Anti-Corruption System Act, which aims to eliminate corruption, an endemic problem in Mexico. However, the bill is not as the government and its allies would have us believe. Instead, it is full of contradictions.
There is no doubt that politicians intend to mislead the public with this bill. The passage of a constitutional reform focused on ending corruption is a multi-party strategy to give the impression that something is being done to address the issue. The problem is, the reform is precisely that: an impression creating the perception of change, but that is not in any way real.
The anti-corruption constitutional amendment leaves the president untouched and outside the scope of the anti-corruption regime except in two cases: a) treason against the nation, and b) serious criminal offenses. Since treason is almost impossible to prove in Mexico, and all serious criminal offenses specified in the bill have disappeared from the Criminal Code, nothing in this reform deters or prevents the president from committing corrupt acts. On the contrary, it allows the abuse of power to go unpunished. A case in point: The recent scandal involving a lavish mansion (“Casa Blanca,” or White House) built for the president and his family happens to be owned by a company linked to a consortium that won a multibillion-dollar contract to build a bullet train. The president cannot be prosecuted under the current anti-corruption bill because his alleged crime is not considered treason or a serious criminal offense under Mexican law.
It was precisely a corruption scandal involving the president, his wife and his treasury secretary, Luis Videgaray, that triggered high-level figures to address anti-corruption legislation as a priority. President Peña appointed Virgilio Andrade — a close friend of Secretary Videgaray from their university days — to investigate a conflict of interest case involving Peña, his wife and Secretary Videgaray. To be clear: an appointee with a conflict of interest was asked to address a conflict of interest problem. The result was predictable. Andrade exonerated the president, his wife and his friend, Secretary Videgaray. A couple of days later, journalists Eric Martin and Brendan Case from Bloomberg News found several irregularities in Secretary Videgaray’s purchase of a luxury vacation house.
It is ironic that the issue that motivated an anti-corruption constitutional amendment was dismissed thanks to a conflict of interest. Nonetheless, “conflict of interest” is not included in the amendment to Mexico’s Constitution. Very few members of Congress were committed to putting the public interest before their own political gain. One exception is Sen. Dolores Padierna of the left-leaning PRD party. She herself summarized the problem, saying “we needed a change of five kilometers, not five millimeters.” It’s harsh, but true: the amendments cover very few misdeeds. In addition to the shortcomings mentioned earlier, the statute of limitations for administrative sanctions or grounds for administrative responsibility was only increased from five to seven years. In contrast, the statute of limitations for these kinds of cases in other democratic societies is an average of 15 years.
In 1917, in order to protect legislators´ freedom of speech and avoid persecution due to what they may say in Congress, a term known as “fuero” (immunity) was approved. The “fuero” has been distorted and is now used for guaranteeing a politician’s impunity. Notwithstanding the need to eliminate the immunity bestowed by the “fuero,” the anti-corruption reforms did nothing to address it, and it remains intact.
Other problems with the constitutional reform include a mandatory declaration of financial assets that are not made public unless the public servant agrees to do so. Therefore, the information may not be subject to public scrutiny. Moreover, this declaration is made under oath — yet the financial information is not checked to confirm its accuracy. Public servants are not subject to further background checks. For example, there is no “control de confianza” or confidence control test, which purports to ensure the aptitude and trustworthiness of every public servant. Perhaps Mexican politicians fear this kind of control may link them to illicit activity involving corruption.
Mexico’s Congress will have to ratify the key anti-corruption personnel who will monitor public servants’ compliance with the administrative law. This does not guarantee any improvement against corruption; rather, it will most likely generate a new way of distributing important positions based on political interests. It also creates economic incentives for legislators to approve suggested candidates without further debate.
A new bureaucratic structure will be created in the name of anti-corruption. The National Anti-Corruption Prosecutor’s Office will somehow fight corruption — and also generate incentives to distribute government jobs according to partisan criteria, expanding the bureaucracy. This does not guarantee that corruption will be addressed whatsoever. The only certainty is that a high budget will be required. The Supreme Audit Office (Auditoría Superior de la Federación) will have some new functions, but will remain an entity that recommends prosecution but lacks the legal powers to do so. At the other end of the spectrum, the attorney general is appointed by the president and may be used as an instrument for political vendettas rather than as an effective force against corruption.
Thus, the constitutional reform remains a mere illusion that does not solve anything. Eventually, it will may be used to punish minor corruption, but not of high-level government officials. It is well-known and has been documented that in Mexico, the rule of law is still a dream.
In the meantime, another case of potential corruption involving conflicts of interest and other illicit activities has recently come to light. This one involves the Secretary of Communications, Gerardo Ruiz Esparza, who allegedly helped the Spanish company OHL win government contracts. As Mexico’s Senate continues its deliberations on anti-corruption reform, there is nothing to celebrate and much to regret. Mexico has once again lost an opportunity to take steps toward becoming a real democracy.
Ernesto Villanueva is a 2006 Americas Project fellow 2006 and researcher at the National Autonomous University of Mexico.