Descartes affirmed, when we start from false principles we move away from knowledge, from the truth. And this is what is happening with the Anti-Corruption System. After the first year of the presidency of the Citizen Participation Committee of the National Anticorruption System, in her protest on February 8, 2018, Mariclaire Acosta Urquidi, ratified the false principles that support the Anticorruption System, and moved away from knowledge ignoring the criticism of his predecessor, Jacqueline Peschard, when she stated days before, “during her mandate as head of the Coordinating Committee, cooperation between institutions, the essence of the SNA, was a simulation (…) What has been the use of having a Coordinating Committee, that we meet every three months, if one continues on his side and the other on his? " (SNA: Few achievements,many pending, process magazine, February 3, 2018).
Although the new CPC president also omitted her criticism and that of her colleagues, Jacqueline Peschard, Manuel Pérez de Acha and José Octavio López, commissioners who intervened in the said interview, according to a journalistic note, “four of the five commissioners of the Participation Committee Citizen of the National Anticorruption System, they decided to speak. And they did it with the New York Times that published a front-page article on December 2. ” They claimed to have been blocked from any discussion of corruption by the government. They believed that there would be a fight (It is corruption, stupid, by Ana Paula Ordorica, www.eluniversal.com.mx, 12/6/2017). So we proceed to analyze the false principles:
- The Anti-Corruption System belongs to citizens. Mariclaire Acosta in her inauguration declared "The System is a State institution where citizenship plays a fundamental role." And it has been accepted as a truth by repeating "the heart of the Anti-Corruption Systems belongs to the citizens through the Citizen Participation Committees" (What is the State Anti-Corruption System for? Rosmi Bonilla, member of the SEA CPC in Michoacán, answer.com.mx, February 26, 2018). But no matter how much the principle is repeated, the reality has been in denial of it, “the decisions on anti-corruption matters must be made by seven different instances of the government, which are: the Superior Audit of the Federation, the Ministry of Public Function, the Court of Administrative Justice, the Council of the Federal Judiciary,the National Institute for Access to Information and the anti-corruption prosecutor himself. They are only one instance and are over-majority "(Idem, Paula Ordorica) being blocked from any discussion on corruption by the government, and added the commissioners" When they wanted to obtain information about the Pegasus case and espionage of journalists and members of the Civil society, the response of the other instances was that it is not their responsibility to know about this topic because although espionage is not legal, it does not represent a crime that involves corruption. In the Odebrecht case, the response has been that the PGR cannot share information with them because it is prohibited to do so while the investigation is in progress.They sought to review the destination of the resources labeled to help earthquake victims and they were also not allowed to access the destination of those resources because they are part of the government budget and since they are not part of the government. ”
Therefore, it is false that citizens play a fundamental role.
- The Anti-Corruption System Law is of public order and social interest and is governed by the principle of transparency. However, the members of the Citizen Participation Committee are subject to the regime of responsibilities determined by article 108 of the Constitution, and the obligations of confidentiality, secrecy, safeguarding of information and other applicable (art. 17 of the LGSNA) are applicable to them. And it has also been privileged in the laws of the control and oversight bodies that a strict reservation must be kept on the information.
But the res publica expresses the idea of something that belongs to everyone or everyone's affairs, and suggests the idea of general interest. Ernesto Garzón Valdés, says "The public is characterized by the free accessibility of the behaviors and decisions of people in society, even more so, when they perform a position endowed with political-legal authority, the publicity of their acts becomes an element essential to any rule of law ”(The intimate, the private and the public, INAI, notebooks of transparency, 06). However, the audit is sustained and developed through the tool or instrument of the audit, and this privileges the secrecy. For this reason, the lack of credibility in the Control and Inspection Bodies, in Mexico and worldwide, José Antonio Gonzalo,President of the Institute of Accounting and Accounts Auditing (ICAC) in Spain, in his participation in the Conference on the new Audit Law, expressed it "This profession is in danger of disappearing as useless, in the event that its social interest".
Then, if it has been shown that the members of the Citizen Participation Committee of the National Anticorruption System have been hindered in knowing information and that they themselves are bound to secrecy and confidentiality. So, the Anti-Corruption System does not serve the public interest or transparency.
- The System has the tools to sanction. Mariclaire Acosta in tools that will allow him not only to punish acts of corruption and administrative offenses, but to modify the very conditions that propitiate them (…) Corruption is intimately linked to impunity. In the absence of punishment or responsibility for a crime or fault committed. Impunity encourages repetition ”. And in Michoacán, since the Law on the State Anti-Corruption System was approved, it is published daily in digital and printed media “The State Congress fights against corruption. With the new State Anti-Corruption System approved by local legislators, sanctions are increased for public servants, individuals and companies that participate in acts of corruption. "
The National Anticorruption System and its Local Systems have emphasized its focus on sanctions and increases in punishments, however, the problem of impunity is not sanction but its proof. In Europe, it has been recognized that auditing is not designed to combat corruption and uncover fraud. For example, Juan Ramallo, member of the European Court of Auditors (TCE), stated “It is not the role of the TCE to investigate cases of fraud. For this there is the European Office for the Fight against Corruption (Interview, Public Audit magazine, number 55, November 2011). And, Carlos Cruzado, President of the Technicians of the Ministry of Finance (GESTHA), pointed out “In the innumerable corruption scandals, the control bodies have had little or no efficacy; in the vast majority of cases they are not detected,not even when they are consumed ”(How to fight corruption? www.nuevatribuna.es, December 3, 2017). For this reason it is strange that the new CPC President in her inauguration speech affirms "the SNA had the participation of experts from the world" Or in other words, if experts endorse it, it is true Fallacy!
More a concrete example: The Director of Auditing of the Central Sector sent memorandum DEASC / 105/16 dated June 6, 2016 to the Holders of the Internal Control Bodies of the Michoacán Comptroller's Office, informing the response about the requirements and / or formalities that must be contained in the document certifications provided by the agencies on the occasion of the actions, by Dr. Ernesto Ramírez Ochoa, Director of Regulations and Responsibility (current Technical Secretary of the SEA) where he states “no guidelines as regards the certifications (…) there is little or no information in this regard ”.And he exposes by way of illustration "I indicate that there is the antecedent of a documentary certified by the IVEM in which it was indicated '… this is a true copy of the document that works in the files of this agency", and the District Judge did not gave it full evidentiary value, but only valued it as a photostatic copy, because it was not specified whether it was a true copy of its original or a simple copy, since the files of the agency that issued it contained both authentic documents and simple copies, and as such, there was no certainty of the authenticity of the document presented as proof of this authority, even when it contains the legend of the certification. ”because it was not specified whether it was a true copy of its original or a simple copy, since the files of the agency that issued it contained both authentic documents and simple copies, and therefore, there was no certainty of the authenticity of the document presented as proof of this authority, even when it contains the legend of the certification ”.because it was not specified whether it was a true copy of its original or a simple copy, since the files of the agency that issued it contained both authentic documents and simple copies, and therefore, there was no certainty of the authenticity of the document presented as proof of this authority, even when it contains the legend of the certification ”.
It should be noted that the CGR has not updated its guidelines, manuals and procedures, in evident irregularity, in this regard "the audit is not a public function left to the discretion of its executor, but rather a process must be followed that regulates and determines its validity; and specifically, abide by the norms, guidelines, manuals, guides and procedures ”thesis 257/2007-SS, tome XXVII, February 2008, p. 597 of the Federal Judicial Weekly and its Gazette.
This and other situations are those that promote vices of illegality, and therefore, cause the nullity of their cases. If the updating of the manuals, procedures and guidelines in the control and oversight bodies with their practice in audits were reviewed, it could be established to what extent the outdated in their regulations and the inadequate audit practices give rise to impunity. In addition, with the Anticorruption System, more complex crimes, such as money laundering or influence peddling, will be investigated and prosecuted.
Then, it is false that there is an audit or oversight that demonstrates its assertions and complies with due process.
- The Anti-Corruption System fights corruption. The goal of any fight or fight is to win. In this case, when corruption is eradicated. But “It is an illusion to believe that corruption will cease to exist, it will not happen. The important thing is that the institutions give an answer ”(Corruption will not end; impunity must be attacked: Sergio Moro, Brazilian judge, www.eluniversal.com.mx). But as the SNA CPC commissioners stated, "they were naive and believed that there would be a fight." That is, to date there is no such combat or fight. And even if it were argued that the purpose is not to end it but to decrease it, what criteria or indicators can indicate or demonstrate that progress is being made or is going backwards? It is not clear.
In Europe, the Control and Inspection Bodies joined forces to fight against corruption, for this reason the Anticorruption Agencies or Offices were created. And the debate currently focuses on their collaboration, see, The Coexistence between the External Control Bodies (OCEx) and the Autonomous Agencies for Prevention and fight against Corruption, by Enrique Benítez Palma, magazine Public Audit, number 69, VI -2017.
Therefore, the Anti-Corruption System, at present, is not fighting or fighting against corruption.
- Coordination of the members of the Coordinating Committee. In effect, the General Law of the National Anti-Corruption System aims to establish coordination mechanisms between the various bodies to combat corruption in the Federation, the federal entities, the municipalities and the mayors of Mexico City (Articles 1 and 2). And the Coordinating Committee is the body responsible for establishing coordination mechanisms among the members of the National System (article 8, LGSNA). And yes, analysts and journalists have believed a priori in its effectiveness, "the logic of the System is a good idea: to create communicating vessels to coordinate the policies and powers of the different institutions that make it up today and that were previously free to duplicate and ignoring the actions of others ”(SNA and Presidential candidates, Irene Levy, eluniversal.com.mx, 02/19/2018). However,Jacqueline Peschard denounced that during her term 'the Coordinating Committee was a simulation. Everyone by their side'.
For this reason, it is incomprehensible that Mariclaire Acosta in his inauguration address did not mention the above, it was time to establish a position and express criticism, but no; She declared, "Our System (…) Has powers to prevent, detect, investigate and punish these crimes and misdemeanors, through the effective combination of efforts of the institutions that comprise it." And by effective is meant effective, or that produces the expected effect, or that which is true or real. And no, none of this happened. For this reason, the speech of the second president of the Citizen Participation Committee is placed more as if it were the beginning or beginning and not a continuation.
But in addition, on January 26, 2018, the First Plenary Assembly 2018 of the Permanent Commission of State-Federal Comptrollers was held, where the Secretariat of Public Function and the 32 Comptrollers of the federal entities participated. And the head of the SFP declared "Those of us who are present here have the historic opportunity to contribute to the establishment of policies of oversight and control of public resources, which will be part of the bases that will guide the fight against corruption":
Then, the Superior Audit of the Federation and the heads of the State Inspection Entities that evidently were not present, do they not have the historical opportunity to help in the establishment of policies and will not be part of the bases that will guide the fight against corruption ? This Plenary Meeting of Comptrollers demonstrates not only the prevailing inertia but the lack of coordination and duplication of its tasks, by excluding the Ministry of Public Function and the State Comptrollers from the ASF and State Control Entities. And so, the purpose of coordination has been breached.
- The System has the powers to prevent, detect, investigate and punish acts of corruption. Yes, the Citizen Participation Committee certainly has the legal power to prevent, investigate and punish acts of corruption. This has been established in its Law, but the legal reason is not sufficient nor does it guarantee that the Control and Inspection Bodies possess the capacities, knowledge, abilities, values and skills to prevent, detect, investigate and punish acts of corruption. Since they lack the teaching and capacity building to prove not only "simple" but complex crimes. Faced with outdated regulations and audit procedures, without legal and evidentiary support.
In auditing and supervision, not by legislative decree are powers acquired to prevent, detect, investigate and punish acts of corruption. Since capabilities are only developed in a conducive environment that strengthens auditors' skills, knowledge and innovation to build a discipline that moves from opinion to reasonable certainty, by demonstrating their assertions through a method, and that transparency in their actions is the criterion to guarantee their objectivity.
Therefore, it is false that the power attributed to the System is a guarantor to carry out work that prevents, detects, investigates and sanctions acts of corruption, given that the legislation has not conferred on it the capacity and competence to comply with such objectives.
Corollary. Obviously the Anticorruption System does not belong to the citizens, nor has it been established in their hearts, in this anatomical analogy it may be the appendix or the tonsils. But neither does it obey the public interest, much less is it transparent, they are finally forced to remain silent and paradoxically they cannot reveal matters of public money, which are in everyone's interest. Plus discretion and impunity have been breeding grounds for corruption to continue. And no, acts of corruption are not sanctioned. But to what extent and in what proportion the audit, be it the type that is applied, or the control and oversight body, be it the ASF, SFP or any other, have been responsible for impunity. Furthermore, if the commissioners have been denied information in various cases, how can they expect the members of the Coordination Committees of Anti-Corruption Systems to open the information to them, to show them not only their procedures but also to demonstrate that their actions are legal. And yes, it seems like an impossible task to do, to fight corruption. An aspiration that seems like a dream or illusion; and yes, it seems like a quixotic fight when trying to fight against windmills.And how to coordinate in actions and work, when lack of coordination is evident. And yes, the Citizen Participation Systems have faculties but they lack the capacity and competence, since they are far from knowledge and truth. And this is the real problem, the false principles in the anti-corruption system.
