It is necessary to begin this essay by mentioning that most legislative bodies around the world have tools to intervene and influence the design of public policies to monitor their execution, to prevent corruption and to prevent mismanagement and misuse of public resources within government organizations. Likewise, there are specific procedures for preparing tax laws.
The regulatory structure in tax matters begins at the constitutional level. The Magna Carta grants the Legislative Power the power to issue the laws on which it is obliged to pay taxes.
Article 31 section IV states:
The obligations of Mexicans are:
IV. Contribute for public expenses, both of the federation, as well as of the federal district or the state and municipality in which they reside, in the proportional and equitable manner provided by law. (CPEUM, 2011).
This constitutional provision establishes the power to contribute, which constitutes the principle of legality of contributions, since this obligation must be established by an act of the Legislative branch that complies with the requirements and formalities that it establishes.
Taxes must be established by means of laws, both materially and formally, that is, by means of general, abstract and impersonal provisions.
The requirement that the laws foresee the proportional and equitable way of the contribution derived in the elements of the same: subject, object, base, rate and rate, which must be contained in the law.
As previously mentioned, the collection policies are delimited in the pertinent laws that are duly supervised and authorizing their correct use according to the tax authorities.
From the above derives the concept of inspection. Controlling the functions implies controlling them. This action acquires meaning regarding the evaluation of evidence in the public sector, as well as monitoring compliance with work programs, the exercise of assigned resources and the conduct of public servants.
A fundamental antecedent for this action is the programming of public spending, both financially and in achieving goals. The Law of Fiscalization and Accountability of the Federation (LFRCF) in its article 2, section XII, defines the Financial Management Progress Report as:
Those who surrender the powers of the union and federal public entities in a consolidated manner through the Federal Executive, to the Chamber on the physical and financial progress of the federal programs approved for the corresponding analysis of said Chamber, presented as a specific section of the second quarterly report of the corresponding year referred to in article 107 of the Federal Budget and Fiscal Responsibility Law. (LFRCF, 2011)
So also in public law the word audit and derivatives like audience and auditor have a long history. In Spain, for centuries, they have to do with the administration of justice. This is the activity of the courts that hear complaints and resolve according to law. They come from the Latin audire (audit), to listen.
In Anglo-Saxon economic law and its branches it means the examination of the accounting activity of a public or private entity and in indications that indicate whether the operating rules or the law were complied with. In this second meaning it is the one we have adopted.
The fact is that this body has no other mission than to make known the examination it performs on the public account of all the member bodies of the federal, local and municipal public administration.
From its examination, no liability is derived for the bodies that violate the rules of public spending and its indications do not oblige anyone, they are not binding, as it is said in legal jargon.
It is also necessary to mention that the Superior Audit of the Federation is a body dependent on one of the committees of the Chamber of Deputies, the Surveillance, and lacks administrative autonomy.
In our days it is possible to know how public money is spent, what in current politics has been raised as a defining characteristic of a democratic government and which is the accountability of all spheres of government, now it is a constitutional concept, but, paradoxically, without any effect institutionally speaking.
When speaking of the autonomy of the supervisory bodies it is necessary to refer to its etymological essence, the concept of autonomy indicates any possibility of self-determination, understood as the power of an organ to give itself its own legal system. (Romano, 1964, p.37). It establishes the capacity of a “non-sovereign” body to establish the legal norms that will regulate it, but that precisely because of its non-sovereignty characteristic, the created norms are closely subordinated to the system of sources of the law of which they are part
However, it is a generally accepted opinion that the concept of autonomy can hardly be reduced to a unitary or univocal meaning.
Therefore, in the face of the definitions that attempt to underline what autonomy implies as a legal concept, it is perhaps better to approach it, taking into account the elements with which it does not identify. This means that the scope and content of the concept of autonomy can be better defined through the negation of the elements that are contrary to it, which are those that implicitly contain the idea of limit or link, than due to their characteristics. own such as:
In this context, the concept of autonomy expresses:
a) Not so much independence, but not dependency.
b) Not so much self-determination, but not hetero-determination.
c) Not so much freedom, but not subjection;
d) Not so much the originality, but the non-derivation. ”22 Giannini, Massimo, Severo,“ Autonomy. Teoría generale e diritto pubblico ”, Encyclopedia of the Spirit, V. IV, Milano, Giuffre, 1959, p. 356.
The application of the concept of autonomy to constitutional organs has produced a notable change in the appreciation of the organs of power and in the legal theory that supports them.
The establishment of new state bodies has been suggested, located outside the traditional division of powers, and endowed with full organizational, managerial and regulatory autonomy to guarantee them a space for institutional action free from interference, and to encourage the exercise of their powers from eminently technical and specialized criteria, and apart from political considerations. These bodies, in accordance with their specific characteristics, have been called autonomous constitutional bodies.
These organs are also born as a consequence of the diversification of functions, the multiplication of structures and the specialization of activities produced by a complex and variegated state organization such as that represented by the contemporary State.
Therefore, the need to establish a political and constitutional balance is combined with the inexorability of specializing the functions, thereby justifying the existence of bodies that are outside or outside the division of powers to carry out tasks that in other At the time they were in the hands of the traditional powers, but based on their transcendence, complexity and technification, they had to be independent so that they developed outside of political interests, with the sole purpose of ensuring respect for the constitutional order and the public interest.
In accordance with the foregoing, the analysis must first consider the degree of authority conferred on an institution, in this case the supervisory bodies, a characteristic that is observed in the nature of the functions entrusted to it, of the normative level in which they are exercised, and the effectiveness of the acts or resolutions in which its activity is specified.
Secondly, there is a need to analyze the legal regime of the body itself, that is, its position or status within the constitutional framework, to notice with what quality it acts in the legal system and thus determine its autonomy. In this context, an autonomous constitutional body, by its very nature, must be invested with a position of supremacy that allows it to affirm, at the same time, its independence.
As a third place, the importance of transparency and accountability, under the premise that an undue exercise of their powers may lead to the generation of new bureaucracies that become corporatized and act as forbidden preserves of power.
Therefore, in accordance with the premises of a democratic rule of law, it is necessary to establish adequate controls through the principle of responsibility, in order to guarantee the proper exercise of its powers, transparency in the management of public resources, and the Accountability for the public authorities as a whole, and most importantly, for society.
In accordance with the elements that characterize them, it is possible to emphasize that the autonomous constitutional organs are those that are expressly determined by the Constitution for the fulfillment of a state function, within their own and reserved institutional space, under a guarantee of independence that the It moves away from the sphere of influence of the set of traditional powers.
To be more synthetic, the autonomous constitutional bodies have distinctive principles that emanate from their own nature and that have been duly identified by the most consistent doctrine.
The solution to the problem of accountability is that sanctions exist, regardless of the negotiations that may arise. It is time to simplify legal systems and change the paradigm that has existed around fiscalization in Mexico.
The challenge of inspection in Mexico is to establish preventive and corrective procedures based on trust and objectivity. However, the reality observed is that the established padlocks end up being violated and when it comes to accountability, for this reason the supervisory bodies are part of the State and without autonomy due to their very condition as judge and party.
What it is, is to find that the control system works, where there are the sanctions that must exist and are applied, independently of political negotiations at their own convenience. It would be desirable if the scope of autonomy of a technical body is clearly established. The pending task for Mexicans is the creation of a credible supervisory body.
Bibliography
Political Constitution of the United Mexican States. Art. 31 section IV. 2011.
Romano, Santi, (1964) Autonomy, Fragments of a legal dictionary, trans. Buenos Aires, EJEA.
Giannini, Massimo, Severo, (1959) Autonomy. General Theory and Public Spirit, Encyclopedia of the Spirit, V. IV, Milano, Giuffre, 1959, p. 356.
