CommentaryJURIST Guest Columnist Cristian Minor Sanchez, an LL.M. Candidate at the University of Pittsburgh School of Law, is the author of the eighth entry in a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. He explores how strengthening the right to information could be key to ending corruption in Mexico…
One of the biggest challenges for the Mexican government in the last decade has been overcoming the corruption of its institutions. It is a problem that has plagued all levels of government. This problem, as in many countries around the world, has brought about economic and social instability. It is defying the rule of law in a democratic state.
The problem can be attributed to, among other things, the idea held by many public servants that they are the owners of a “corporation” called the government. Accordingly, they believe that they have the right to use and misuse public resources as if they owned them. However, public servants should realize that, in an analogy to American corporate law, they are simply the board of directors and officers of the corporation and we, the people, are the shareholders and true owners. Therefore, public servants, who only hold their positions for a limited period of time, owe fiduciary duties to the people, such as the duty of loyalty and the duty of care. The people, as the real owners of this corporation, should have the right to ask and to know how the corporation is performing and using public resources. With an informed society, public servants would act knowing that they could be held accountable for their actions. This potential for accountability creates a greater sense of responsibility and, as a result, is likely to encourage public servants to be more truthful and efficient in the performance of their functions.
For this article, I will focus on one of the solutions that the Mexican government, in conjunction with different sectors of society, has found to be effective in the fight against the corruption and wrongdoings of government officials. This solution was the amendment to Article 6 of the Political Constitution of the Mexican United States, which gives the people the right to know and have access to public information held by the government. This right is a tool to prevent the misuse of public resources by public servants and to promote transparency.
The idea of transparency and access to public information is not a novel discovery made by the people of Mexico, although until the end of the last century it was almost nonexistent in the country. This is why the idea has had a large negative effect on the government and society. Access to public information has become a fundamental right and the consolidation of democracy has generated awareness in Mexican society about how the power of the government is exercised, what the government does, how it does it and for what purpose it is done.
It is important to provide some historical background about the development of this constitutional right in order to understand why it has become so crucial to continue with a democracy sustained by real rule of law.
In 1917, the current constitution of the United Mexican States was promulgated. It has 136 articles and is divided into two parts. The first covers the fundamental rights of the people, and it contains limitations on the relationship between the state and the people. It is referred to as the dogmatic and covers the first twenty-nine articles of the Constitution. The second part is called the organic part and it covers Article 30 to 136. This part of the Constitution organizes the structure and function of the three different powers, as well as the organization of the powers of the states of the republic.
Article 6, the article of interest for this discussion, as originally enacted in 1917 stated only:
[T]he expression of ideas shall not be subject to any judicial or administrative investigation, unless it offends good morals, infringes the rights of others, incites to crime or disturbs the public order.
Obviously, the original purpose of the constitutional article was only to guarantee freedom of speech, similar to the First Amendment to the US Constitution.
Nonetheless, in 1977, Article 6 was amended. The following phrase was added at the end of the article: “The right to information shall be guaranteed by the State.” The legislative history indicates that this text was added because of a need to allow and guarantee political parties access to the media so that they could communicate their ideas. For several years, this amendment created a debate regarding its scope that focused mainly on the issue of regulating the access of political parties to the media. Also, the Supreme Court of Justice of the Nation (Supreme Court) ruled that this phrase only regulated the access of political parties to the media. Another proof of the intent of the legislators to amend Article 6 with the purpose of guaranteeing political rights, instead of a fundamental right, was the myriad activities that surrounded the reform. The addition was made with a number of amendments called the Political Reform of 1977 which was used as a framework of reform for political and electoral rights. However, some academics indicated that this amendment also provided the people with the power to access governmental information and did not stop at access to political rights.
Although the intent of the legislators was clear when they passed the amendment in 1977, the Supreme Court reversed its previous ruling decades later. In 1996, the Supreme Court held that, even though the amendment had been construed as a right for political parties in the past, it should be read to provide the people with a fundamental right and obliged the government to provide truthful information.
Furthermore, the Supreme Court held in a different decision that the exercise of the right to information was only limited by national and societal interests and by the rights of third parties. In other words, this fundamental right is limited by information considered to be reserved because of its nature or confidential because it protects private information of the people held by the government.
At this stage, the right to information was construed by the Supreme Court not as an autonomous right, but in some way expressly or implicitly connected with other fundamental rights, such as the freedom of speech, the right to petition and the right to be heard in court.
Nevertheless, at that time, there was no regulation that could enforce this fundamental right. But, at the beginning of the twenty-first century, there was an international dissemination of terms such as “transparency” and “access to public information.” The first term was understood as the obligation of the government to make public the information in its possession and the second term was understood as the fundamental right of the people to have access to information held by the government, also known as the “right to know.” This international movement that resulted in the promulgation of laws of transparency and access to public information around the world had a direct impact on different groups of the society, such as non-profit organizations, academics and chambers of commerce. These groups worked together and started to promote the creation of a law that could guarantee transparency and access to public information in Mexico. As a result, the Congress of the Union passed the Federal Transparency and Access to Public Government Information Act [PDF] in 2002. The act created the Federal Institute of Access to Public Information (IFAI). The main principle of the law is transparency, which is understood as the responsible exercise of power. When government makes information public to society about how politics and administration are conducted, society can participate in the democratic exercise of power. Therefore, decreasing the unlimited power of the government and reducing corruption.
This act established that information in the possession of the government is public and that the government has an obligation to provide it to any person who requests it through a quick and simple process. The same act also establishes that the only way in which the delivery of information would be refused is if such information is under one of the two categories of restricted information: reserved or confidential.
In the years that followed the enactment of this law, most of the 31 legislatures of the states of the Mexican Republic started to enact laws to enforce this fundamental right and to create agencies around the country with the purpose of enforcing these laws. However, the constitutional foundation of this fundamental right was weak and unclear. The main problem was that the legislatures did not construe this fundamental right or its scope uniformly because neither the constitution nor the Supreme Court provided a basic understanding of the main principles on which the regulations should be based.
In 2007, after a great effort by legislators, academics, members of the government and members of society as a whole, the Congress of the Union passed a constitutional amendment [PDF] to Article 6. Under this amendment, the constitution explicitly guarantees the right of access to public information and elevates it to the level of a fundamental right by establishing seven categories with principles and fundamentals that constitute its legal framework.
The first category establishes the principle that all information held by any authority, entity or agency, at the federal, state or municipal level, is public and can only be reserved temporarily for reasons of public interest in the terms. Also, when interpreting this fundamental right, the standard of maximum publicity should be used. The second establishes the principle that private information of the people and personal data held by the government shall be protected based on terms and exceptions determined under law. The third establishes that any person shall have free access to public information, personal data or the rectification of those without needing to demonstrate any kind of legal interest or justification for the utilization of the information. The fourth states that there shall be a mechanism to access public information and a mechanism for dispute resolution procedures and that these procedures shall be resolved before specialized and impartial agencies with autonomy of operation, management and decision-making. The fifth establishes that the government shall preserve its documents in administrative archives, and mandates that the government shall publish information related to the use of public resources and management indicators. The sixth states that the laws shall determine how the government shall publicize information related to public resources given to individuals and corporations. And the seventh category establishes that non-compliance shall be sanctioned according to terms determined by the law.
It has been almost four years since the constitutional amendment to Article 6. It has proven to be effective, and now all the laws in the country have been changed to comply with this new constitutional text. Although authorities still resist the idea that they do not own public resources and that they cannot deny the delivery of information to the public, as it is established upon one of the most fundamental societal rights, it has been affirmed that the people have the right to know what their government does with public resources.
This amendment has resulted in several thousands of requests for public information, more oversight in how public servants manage public resources, public disclosure of financial information regarding political parties, dissemination of information on administrative and criminal sanctions and information for each of the three branches of the government being made available online — such as the goals of an entity, the salaries of public servants, public spending, government bidding procedures and opportunities and financial reports. Thus, the exercise of the fundamental right to information is a successful remedy to corruption as it promotes both accountability and transparency. This fundamental right has proven to be a real democratic tool that empowers the people and it can be used for social benefit to delineate the way in which the government should be conducted.
Mexican society and the Mexican government have a long way to go to reach a complete democracy founded on the most fundamental rights and their own constitution. To achieve this goal, both parties have to make a greater effort to overcome the problem of corruption so that the country will be seen again as a nation governed by the rule of law.
Cristian Minor Sanchez received his first law degree from the Autonomous University of Puebla State, in Puebla, Mexico, in 2003, where he also received a diploma in Mediation as an Instrument for the Resolution of Conflicts in 2007 and a diploma in Human Rights, Public Safety, and Administration of Justice in 2008. Minor worked for several years as a law clerk at the Commission for Access to Public Information and Protection of Personnel Data in Puebla, Mexico, before moving to Pittsburgh, where he was a member of the UPMC Health Plan Insurance Services Division for two years. During his legal studies, Minor worked as a legal intern at the Senate of the Republic in Mexico City.
Suggested citation: Cristian Minor Sanchez, Battling Corruption in Mexico through the Right to Information, JURIST – Dateline, May 23, 2012, http://jurist.org/dateline/2012/05/cristian-minor-sanchez-mexico-corruption.php.
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
