This article first appeared in El Economista on May 18, 2021.
Despite having a solid and complete legal framework, Mexico presents few legal efforts and deficiencies to prevent and correct corruption. With a final score of 5.51 points, where zero is the lowest score and ten is the highest, our country ranked second to last in the Latin America Anti-Corruption Assessment 2020.
The regional study conducted by Lawyers Council for Civil and Economic Rights of the Vance Center for International Justice, also details that anti-corruption authorities in Mexico do not have the necessary material independence to effectively prevent, investigate and prosecute corruption.
The experts participating in the report warn that despite the fact that one of the flags of the current administration is the fight against corruption, political will has much influence in this aspect, as they mentioned that “there is much interest in pursuing corruption cases of past administrations, but not cases of current officials”.
In addition, the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI) was identified as an effective body for the prevention of corruption through transparency policies, and the Ministry of Public Administration (SFP) as the least effective.
The measurement for eight countries (Argentina, Brazil, Chile, Colombia, Guatemala, Mexico, Panama, and Peru), indicates that, in the case of Mexico, which obtained the second best score (9.05) in terms of legislation to fight corruption, only behind Peru (9.09), the application of one or more of the anti-corruption laws or regulations has been difficult, due to a lack of specificity, clarity or definition in relation to other legislations or regulations. The experts consulted highlighted their lack of enforcement, or enforcement based on political lines, which is why Mexico obtained a rating of 4 on the implementation of the laws.
On the other hand, the document, which gathers the vision of legal professionals dedicated to anti-corruption practice from various sectors, including law firms, companies, academia, civil society organizations, human rights defenders, among others, adds that although in our country there are mechanisms to prevent corruption within the public administration, such as policies and procedures to identify and manage conflicts of interest or measures that require public officials to submit asset declarations, there are cases such as in public contracting, where the authority seeks exceptions to carry out direct awards, which is an important space for discretion and corruption.
It was emphasized that while in Mexico private legal entities can be subject to administrative, criminal and civil liability, there is an area of opportunity to force companies to implement compliance programs and anti-corruption policies.
In terms of whistleblowing, it was stated that, although there are means and mechanisms for citizens to file complaints of corruption, both in administrative and criminal proceedings (including digitally), “this framework of protection for informants or whistleblowers is insufficient, and should operate nationwide, in accordance with the National Anti-Corruption System, and not be functional only for the scope of application of the federal Ministry of Public Administration”.
In addition, there is no provision in Mexico for economic compensation for the realization of a report or alert, nor for the recovery of State assets as a result of citizen complaints or alerts.
Regarding the authorities specialized in anti-corruption matters, the experts were concerned about the lack of appointment of the anti-corruption magistrates of the Federal Court of Administrative Justice. In particular, they mentioned that the Financial Intelligence Unit and the Ministry of Public Function work “at the President’s request”.
Finally, the analysis underlines that despite the fact that in the Constitution and in the Law of the National Anticorruption System, a mechanism for inter-institutional cooperation and coordination to prevent, combat, investigate and punish corruption is foreseen, called the Coordinating Committee of the National Anticorruption System, which is made up of various federal agencies, “the SNA has not operated fully and efficiently in the last 2 years due to lack of political will, although the Technical Secretariat of this system has presented progress”.
The Latin America 2020 Anti-Corruption Assessment seeks to map legal efforts to prevent and combat corruption and unlike other efforts that focus on measuring corruption or the perception of corruption, this study focuses on legal practice to analyze legislative and regulatory efforts and the institutional framework to prevent, sanction and combat corruption.
