FCPAméricas Blog

AMLO’s Election and the Future of Mexico’s National Anti-Corruption System

Author: Guest Author

This is a guest post by Robert Clark, Manager of Legal Research, TRACE International, where he oversees a team of lawyers responsible for the production of analytical content.

Mexico’s new president-elect, Andrés Manuel López Obrador, has a wide range of tools to deploy in furtherance of his signature anti-corruption agenda. He has proposed enhancing governmental transparency, both in the contracting and procurement processes and through mandatory financial disclosures by public servants. He has promoted the increased involvement of ordinary citizens through a plan to expand individuals’ ability to initiate criminal charges for corruption. Further measures range from allowing preventive detention for crimes of corruption to combating misuse of the banking system and tax havens. And, in a tone-setting gesture, he plans to put the government on a strict fiscal diet—including eliminating the pensions of former presidents.

But this ambitious platform comes with one glaring omission: what to do about the National Anti-Corruption System (“Sistema Nacional Anticorrupción” or “SNA”)? The SNA was created as part of a set of anti-corruption reforms put before the Peña Nieto administration by a coalition of civil-society actors. It was designed as a decentralized apparatus spanning federal and state governments, under the guidance of a Coordinating Committee made up of a cross-section of public officials and citizen representatives. However, two years after being signed into law, it remains far from fully implemented.

A critical component of the SNA is the appointment of an independent anti-corruption prosecutor—part of an autonomous National Prosecutor’s Office that would assume the functions of the current Attorney General. Congress has yet to name a special prosecutor to handle corruption matters, leaving such authority for now in the hands of the Attorney General—therefore under the President.

Following through on moving this prosecutorial authority from the Executive Branch was a stated priority for several of the candidates in last week’s election—as was the task of investigating the alleged misdeeds of the current administration. López Obrador appears poised to take a different approach, bolstering the A.G.’s ability to crack down on corruption, while leaving any misdeeds of the incumbent to resolution by an independent judiciary. He has even spoken of “reconciliation” as a potentially desirable outcome.

What should we in the compliance community make of all this? It’s hard to disagree with López Obrador’s aims or to doubt the sincerity of his pursuit. At the same time, there’s room for concern about the ease with which he appears to dismiss the role of civic institutions—including the press, the courts, NGOs and the business community—in fighting corruption, and for worries about the direction his “go-it-alone” attitude might lead him, particularly in terms of how he may deal with critics of his favored policies.

Looking at Mexico’s recent history can help us understand the nature of these worries. Specifically, we can examine the trend of certain indicators of corruption as maintained by institutions such as the World Justice Project, the World Economic Forum, and the Heritage Foundation. (These are the indicators used in assessing a country’s “expectation” of bribery for purposes of the TRACE Bribery Risk Matrix—my organization’s publicly-available resource for gauging the risk for businesses of encountering bribery demands in each of 200 countries.)

 

Figure 1

The data indicate a general trend toward a less corrupt environment between around 2009 and 2012, followed by a sharp upswing lasting several years, reaching significantly higher levels than before.

This is striking enough on its own. It becomes even more interesting when we compare it to the assessment (by Freedom House) of the degree of impediment to free political reporting:

 

Figure 2

A slightly better-than-average environment in 2004 gradually deteriorates over the rest of the decade until the climate for political reporting is considerably worse than average. As it happens, the second half of this transformation occurs during the same period in which corruption (or at least certain kinds of corruption) seemed to be receding.

Given that the trend had started nearly half a decade earlier, it isn’t clear that the worsening environment for political reporting was furthered by governmental efforts to reduce corruption. What is clear is that after it reached a certain point, it didn’t go back—and the years that followed were marked by a dramatic increase in corruption.

If one wants to draw a lesson from this cursory analysis, it could be that restrictions on civil liberties in the name of reducing corruption, even if effective in the short run, have effects that remain in place after the government’s priorities change. Once the institutions that help provide a check on corruption have been weakened, it isn’t easy to bring them back when they’re most needed.

Although López Obrador will come into office as a reformer, his openness to “reconciliation” with political opponents suggests a pragmatic appreciation for the value of continuity and stability in the political order. Perhaps he will also recognize the importance of those ideals in the civic order, and can find a way to build on the work Mexico’s civil society has performed in codifying the National Anti-Corruption System, instead of letting this potentially durable tool turn to rust.

The opinions expressed in this post are those of the author in his or her individual capacity, and do not necessarily represent the views of anyone else, including the entities with which the author is affiliated, the author`s employers, other contributors, FCPAméricas, or its advertisers. The information in the FCPAméricas blog is intended for public discussion and educational purposes only. It is not intended to provide legal advice to its readers and does not create an attorney-client relationship. It does not seek to describe or convey the quality of legal services. FCPAméricas encourages readers to seek qualified legal counsel regarding anti-corruption laws or any other legal issue. FCPAméricas gives permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author and to FCPAméricas LLC.

© 2018 FCPAméricas, LLC

Post authored by Guest

Categories: Enforcement, English, FCPA, Mexico

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