The National Anti-Corruption System and its reservations.
I n recent years, corruption indicators in Mexico have increased. It is not quite known if those high levels shown are originated by the fact that this problem has risen in recent years or that it has maintained its dimension for longer than one can imagine. The truth is that for years, it has been an issue that has not been attacked or discussed, either because of lack of interest or opportunity, but, today, the country has taken the first step in securing a transparent and upright government, by implementing a National Anti-Corruption System.
Given the current state of the world, inhabited by a society that is becoming more informed every day, and which is supported by effective tools such as the internet and social networks, it is increasingly common to discover cases of corruption. This has led to corruption becoming the center of attention of citizens, so the government has been forced to respond by implementing a system to combat this issue. However, how reliable are these series of reforms and new instruments that promise to subdue such improper activities of our public officials? Are there any reservations?
According to expert opinion and criticism, one of the main problems that have arisen in this System can be found in article 29 of the Law on Administrative Liability (Ley de Responsabilidades Administrativas), which establishes that, if a public official considers that the disclosure of the information indicated in the Law may affect their privacy, they may request such information to not be made public. Since the concept of private life is very ambiguous, the sense in which this article can be interpreted is quite broad.
Likewise, there has been no investigation so far on those officials who have submitted their interests statement (declaración 3 de 3) in zeros as well as those who have submitted it with large amounts of assets. The question therefore arises as to whether any statements made with these suspicious irregularities are to be audited, or if the relatives of public servants should also be obliged to make such declarations.
In addition, the crimes of public servants in the exercise of their functions have never been considered as ‘serious‘, generally being released from any responsibility by means of the payment of a bail, leaving the population with a perception of continuous impunity for this kind of crimes. Notwithstanding the foregoing, the amendments made to the Administrative Justice Law (Ley de Justicia Administrativa) and the Federal Penal Code (Código Penal Federal) do not increase penalties or sanctions, explaining and justifying that there are no measures on corruption.
It is also important to note that, when a corrupt conduct occurred, it was referred as an ‘improper’ exercise of the public function, and now it is referred as an ‘illegal’ exercise of the public function, and new powers are also given to administrative law, similar to the functions of the criminal law, by pointing out prohibitive provisions of conduct in administrative legislation. The conducts indicated by the Law on Administrative Liability (Ley de Responsabilidades Administrativas) are the same as the Federal Criminal Code (Código Penal Federal), so the question arises as to which jurisdiction is appropriate, together with the fact that, if the sanction procedures are followed before both instances, there could be a situation where a double sanction for the same events happens, which is a violation of Article 23 of our Constitution, which establishes the fundamental right of not being tried twice for the same facts.
It should be mentioned that an option that has proven viable in other countries, and which has not been implemented in our country, is an informants system, people who know about corruption first hand, and who are given protection and/or a proportional reward , thus fighting corruption from within the dependencies.
Based on the above, three problems arise regarding the application of the anti-corruption system:
- How the state legislation will be adapted to the federal law and whether they are equivalent and compatible;
- What will happen with the municipal citizen councils given the creation of the committees provided by the federal legislation; and,
- If there is enough budget to achieve the correct implementation of the system.
It is also necessary to conclude that corruption really begins within society and the acceptance it gives to the same. While corruption is partly combated by sanctions and prohibitions, it must also be combated through the promotion of values and ethics, thus making society and citizens engage in the fight against corruption.
MGM.
