In a previous post, we asked how Mexico should approach the urgent need to reduce the level of corruption in the country. Indeed, anticorruption measures are one of the key reform promises of the government’s Pacto por Mexico.
Mexico’s problem addressing corruption in the past has not been the product of a deficient legal framework. Mexico’s Penal Code criminalizes both active and passive bribery (Art. 222), bribery of foreign government officials (Art. 222 bis), abuse of power (Art. 220), and trafficking in influence (Art. 221) (see Annex 4 of the OECD Phase 3 Report on Implementing the Anti-Bribery Convention for English translations). Rather, as we previously reported, the central weakness in Mexico’s anticorruption framework is the lack of enforcement, and the lack of enforcement stems from assigning anticorruption work to weak institutions (i.e., Secretaria de la Funcion Publica). Thus, the Pacto por Mexico directs the creation of a new anticorruption agency, and we previously reviewed what characteristics an effective agency should have.
On December 13, the Mexican Senate passed the anticorruption reform required by the Pacto. The reform – available here (Spanish) – consists of several additions to the Constitucion Politica de Los Estados Unidos Mexicanos. The most important addition is a new Article 113(III) (starts on page 141 of the document), which establishes a new National Anticorruption Commission. The main points of Art. 113(III) include:
- Anticorruption commission will be responsible for prevention, investigation, and punishment of corruption offenses
- The commission will have the power to mete out administrative sanctions – suspension, dismissal, disqualification, and monetary fines – but not criminal sanctions; the fines may not exceed more than three times the benefits received or damages caused by the corruption offense
- In cases involving criminal violations, the commission will pass the case along to the Procurator General of Mexico
- The commission is an autonomous public agency with its own legal identity and assets
- The head of the commission will be appointed by the senate based on a proposal from the parliamentary factions; the head holds office for seven years and may not hold other employment during the term
- The commission must develop programs and activities to promote ethics and honesty in the public service and a culture of respect for the law
- The commission will have an Advisory Council, presided over by three citizens appointed by the Senate, a representative of the executive branch, a representative of the Supreme Auditor of the Federation, and a representative from the Federal Institute for Access to Public Information (IFAI)
- The commission may issue general or specific recommendations to the three branches of government, aimed at preventing corruption
The anticorruption reform is currently pending approval by the House of Deputies, which should take up the issue when it returns on February 1.
So far, the reactions the reform have been limited, possibly because it was released over the holidays, as well as the focus on the violence in Michoacan. But some anticorruption practitioners have been critical of the reform. Specifically, the experts felt that the commission’s head and citizen members should not be appointed by the Senate – one of the very bodies the commission should be policing. Moreover, observers argued that the commission’s recommendations should be binding on the government entities to which they are issued. Finally, the critics noted that the reform puts off the task of articulating a ‘national system for combating corruption’, as required by the Pacto.
Although the critics raise valid points, many of their concerns can either be addressed by the House of Deputies or may not materialize in practice. Most important, the reform creates a commission that in principle avoids the problems with the existing Secreteria de la Funcion Publica – i.e., the new commission is legally independent/autonomous, and may initiate investigations and mete out sanctions. Thus, the new anticorruption commission has a better chance at carrying out its mandate to prevent, investigate, and punish corruption. The first major test of the commission will be who is appointed, and will indicate whether it will turn out to be a serious entity or not.