By Ernesto Villanueva, 2006 Americas Project fellow 2006 and researcher, National Autonomous University of Mexico
Mexico’s Senate is currently deliberating an amendment to the constitution that aims to eliminate corruption — an endemic problem in Mexico. However, the National Anti-Corruption System Act is not as the government and its allies would have the public believe. Instead, it is full of contradictions.
There is no doubt that politicians are misleading the public with this bill. The passage of the constitutional reform is a multi-party strategy to give the impression that legislators are addressing corruption. The problem is, the reform is precisely that: an impression of change, but not change that is 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 the reform deters 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 led high-level figures to prioritize anti-corruption legislation in the first place. 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: Andrade was asked to investigate a conflict of interest case involving a party with whom he had a conflict of interest. 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, of course, that the very issue that motivated anti-corruption reform was itself dismissed thanks to a conflict of interest. Nonetheless, “conflict of interest” is not included in the amendment to Mexico’s Constitution.
As Congress began deliberations on the bill, very few legislators appeared committed to putting the public interest ahead of their own political gain. One exception was 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 types of corruption. In addition to the bill's 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 similar cases in other democratic societies averages 15 years.
In order to protect legislators´ freedom of speech and avoid persecution due to statements made in Congress, legislators were given “fuero,” or immunity, in 1917. The fuero has been distorted and is now used to guarantee impunity for politicians. Aside from the need to eliminate the immunity provided by the fuero, the anti-corruption reforms do nothing to address its misuse, and it remains intact.
Other problems with the bill include a mandatory declaration of financial assets that has no real effect — the information is not made public unless the public servant agrees to it. Therefore, the information may not be subject to public scrutiny. Moreover, although the declaration is made under oath, 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.
Under the reform, Mexico’s legislators will confirm key anti-corruption personnel who will monitor public servants’ compliance with the law. This in itself does not guarantee any gains against corruption; rather, if history is a guide, it will most likely generate a new way to distribute important positions based on political interests. It will also likely create economic incentives for legislators to approve suggested candidates without further debate.
In addition, the reform calls for the creation of a new bureaucratic structure to ostensibly fight corruption. The National Anti-Corruption Prosecutor's Office will somehow fight corruption — and also likely incentivize the partisan distribution of government jobs via another layer of bureaucracy. The existence of an anti-corruption prosecutor's office does not guarantee that corruption will be addressed whatsoever. The only certainty is that a big 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 — and lacks the legal powers to carry it out. At the other end of the spectrum, the attorney general — who obviously has the power to prosecute — is appointed by the president and is vulnerable to use as an instrument for political vendettas rather than as an effective force against corruption.
Thus, the constitutional reform remains an illusion that does not solve anything. Eventually, it 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 largely 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 to deliberate 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 true democracy.
Voices of the Americas is a space for Americas Project fellows to share their insights into events unfolding in their home countries and in the region as a whole. The fellows' essays will also focus on economic development, institution building, democracy and the rule of law.