When the subject of auditing or inspection is approached, it is done from the general, however, this essay starts from the specific. Since it is time to theorize from the concrete in the Higher Audit Institutions.
The LXXIV Legislature of the state of Michoacán (Mexico) intends to modernize or reform its Technical Body without paying attention to the false conception that prevails in its Superior Control Law (including the recent Law of Superior Control and Accountability of March 29, 2019). Given that the vision that has traditionally led in the reforms has been, not to differentiate audit from audit. And it seems an irrelevant matter due to the assumption that we all understand what we mean when we talk about auditing and control, and consequently, we accept that others understand it. Furthermore, "In the international arena, especially in the Anglo-Saxon world, there is no distinction between auditing and auditing."
In such a way that it is familiar to understand that, audit, evaluation, control, inspection, investigation, review, verification, and surveillance are related or synonymous terms. However, this essay intends to emphasize the importance of differentiating audit from audit. Together with the recently approved Anticorruption legal framework, the objective of which is to guarantee that the State Bodies have an Anticorruption System that prevents, investigates and punishes administrative offenses, acts and acts of corruption.
And even more, before the process of integrating into the initiative of the Organic Law of the Attorney General's Office of Michoacán, the participation of civil society organizations, social sectors and citizens that can contribute proposals to strengthen the autonomy of this institution and strengthen the procurement justice in the state, and given that a primary area is constituted from crimes related to acts of corruption. Then, trying to strengthen justice, on the issue of corruption, without strengthening the audit (and this is to differentiate it from the inspection) would lead to a failed law, as all the reforms to the Superior Audit Law of Michoacán have resulted.
Michoacán needs its politicians to respect its institutions and the Legislative Power to its Technical Body, because they pass, but it remains. And so, after countless failed reforms in the Superior Audit Office of Michoacán, the current Legislature proposed changes without changing. For this reason, it is necessary to draw the attention not only of its Inspection Commission, (which has the responsibility of monitoring and monitoring the activities of the Superior Audit, as well as evaluating its performance) but also of all the members of the State Congress from Michoacan.
In fact, the National Anticorruption System and its Local Systems face difficulties, obstacles and inertia that explain their scant or null results. Imputing its failure to comply with the lack of political will, deficiencies or irresponsibility of those in charge of implementing such Systems, and even, in the Anti-Corruption System in Michoacán, its Technical Secretary has been accused of preventing said System from working. But, "I have emphasized that it is a mistake - and it is a serious mistake - to assume that corruption is a matter of isolated individuals." And in the same way, considering that the impediment to fight corruption or the deficiency in the control could be attributable to an individual, is also a mistake.
The implementation of the Anticorruption System in Mexico is certainly proving very complex, it is obvious, it contains a number of elements: political parties, governments, interests of each legislature and the anticorruption systems, pressure groups, social organizations, the media, among others, and more than interrelationships and balances, are presenting disputes and imbalances. And it is surprising the almost non-existent theorization about the errors in its design, and the omission of the audit, as a basic tool of the inspection, as an interpretive factor of the failures in the Anticorruption System, and therefore, in the National System of Inspection.
Therefore, finding opinions that help to clarify the issue is extremely important, such as the statement of Arturo Bucio Ibarra, presiding magistrate of the Michoacán Administrative Court of Justice and member of the Coordinating Committee of the State Anti-Corruption System in the State, " recently participated in a regional meeting in Guadalajara where the subject is practically the same, we have difficulties to make operational a rule that is very general, but in practice it becomes very complex, that is, the confluence of all the bodies that make up the Coordinating Committee, it must be very well orchestrated and that is the issue that has not been able to be traced at the national level ”. Which indicates two aspects, the first, the lack of coordination of the Coordinating Committee in Local Systems.
Although it has also been presented and denounced in the National System, Jacqueline Peschard at the end of her term in the presidency of said Committee pointed out, “What good has it been that we have a Coordinating Committee (…) if one continues on its side and the other for yours? "
And in Michoacán the disagreements between the members of the State Anticorruption System have been regrettable, due to their diverse interests, points of view and motivations; in this regard the Dip. Miriam Tinoco Soto, member of the ASM Inspection Commission, "said that the Legislative Power cannot be indifferent to the crisis situation that the State Anti-Corruption System is going through and that the members of its Coordinating Committee have been pointing out."
More "it is necessary to find intelligent coordination formulas that integrate the activities of the various participants without losing sight of the objective to be achieved." And second, Judge Arturo Bucio has acknowledged "we have difficulties to be able to make operational a rule that is very general, but in practice it becomes very complex."
Then, the hypothesis: What is the cause that the Anticorruption regulation is inoperative and complex, and specifically, in relation to the Superior Audit of Michoacán?
“The president of the Michoacán Superior Audit Commission (ASM) in the State Congress, Marco Polo Aguirre Chávez assured that there is the willingness of the different banks to reach agreements on the reforms to renew the ASM in the entity, a body that He has been harshly criticized for the lack of results in his work (…) I perceive that we can have important progress in the remainder of the year, in order to have a clear route of how we can achieve, put a strong hand on the Superior Audit ”.
However, the approval of the Law on Superior Audit and Accountability of March 29, 2019 and the Internal Regulations of May 29, 2019, as well as the appointment of department heads, directorates, special auditor of municipal control and head of the evaluation and control unit, and above all, the absence of a restructuring in the technical body, suffered from a clear path to truly reform the Superior Audit.
The foregoing reflects not only the ineffectiveness of the Oversight Body of the State Congress and the State Anti-Corruption System but also the lack of clarity in the legislators on both problems. Because the Legislative Power in Michoacán has become accustomed to believing that non-compliance with the Superior Audit Law and its reforms derives from the moral and intellectual defects of the officials and personnel of the Superior Audit Office.
And consequently, the president of the Inspection Commission continually reiterates "putting a strong hand on it." Just as if it were primarily an absence of character, discipline or values in the staff (since "reaching out a strong hand" only applies to people, not structures or conceptions). And the crisis in the Anticorruption System in Michoacán is not reduced to a personal question of disputes or control of power. It goes further, as it is part of the National Anti-Corruption System by inheriting the deficiencies of its design.
However, it is not intended to analyze this System, much less the National Anticorruption framework, but rather that the reforms to the Law of Superior Control and the Law of the State Anticorruption System for the State of Michoacán have established an audit and control practice against its own acts, leading to their breach and illegality.
In this sense, the LXXIII Legislature, reformed the Superior Audit Law, based on the initiative that considered that such modifications “should have a positive impact, in such a way that new processes or mechanisms are established (…) and incorporating information requirements within of the planning of audits that make them more assertive ”. But a year later it was recognized that “ the Special Audit of Municipal Inspection has not undergone any change and has had to adapt to the new legislation without having in many cases the ideal experience, and in others the professional profile not adequate to the guidelines of the new law "and" is in a difficult situation to fully comply with the responsibilities and functions that are entrusted to it.
And notwithstanding the foregoing, as well as having failed the last five Public Accounts, and the harsh criticisms of legislators, such as in Considerations to Reform the Superior Audit Law, which stated “The Audit is responsible for auditing the resources, and part of the problem is the type of examination that is carried out, because we are very late and we are inefficient in the examination ”.
Therefore, new types of audits were added in the 2017 Supervision Law, leaving: legal audit; financial compliance audit; budget audit; performance audit; audit of physical investments; information technology audit; forensic audit; and, comprehensive audit. That is, 8 audits. Then, the recent Fiscalization Law of 2019 established: financial, compliance or legality, work and performance. 4 types of audits to perform. And the difference seems like a minor matter.
However, when the central objective of the Law of the State Anticorruption System for the State of Michoacán is to prevent, investigate and punish administrative offenses, acts and acts of corruption. And when it has been approved that “the Special Audits of Normativity and Quality Control; of State Control; Municipal Inspection; and the Public Account, Monitoring, Evaluation and Performance Unit to become investigating authorities within the framework of the State Anti-Corruption System, having all the powers and obligations that emanate from the legal provisions that regulate the matter of fighting corruption.
And in addition, the purpose of the Superior Audit of Michoacán has been established "regulates its organization and attributions, including those to know, investigate and substantiate the commission of administrative misconduct" (Superior Audit and Accountability Law, article 1). But how will such objectives be met if the audit has been bypassed?
In the Superior Audit and Accountability Law of 2019 it is observed:
- "The Superior Audit of Michoacán will review, supervise and evaluate the management of the Powers of the State…" (article 2, second paragraph). In the Glossary of what should be understood by some terms, the audit is not defined. "Order the practice of visits, inspections and compulsory certificates necessary for the fulfillment of its inspection and investigation functions ”. (Article 10, XII, powers of the Superior Auditor). The practice of audits is not mentioned, which constitutes not only an omission but a probable violation of the principle of legality, as the audit orders that the head of the Superior Audit may issue are not founded or motivated. And that the Superior Audit Law of 2017 did consider it when establishing “Order, in your case, the practice of visits,audits and inspections necessary for the fulfillment of their functions ”(article 14, XI).
The fundamental problem has been to consider that auditing is synonymous with supervising, reviewing, investigating or inspecting, which is shown in its Law and secondary regulations. Being tautological, it does not clarify or say anything, and consequently, its lack of definition. Imprecision that transcends the conceptual as it manifests itself in the inoperability of the regulations, in compliance with its principles and general bases that guarantee that the Superior Audit carries out the prevention, investigation and sanction of administrative faults, acts and acts of corruption. Although to sanction it is required to prove, and this has been the crux of the audit. Then the audit should be placed at the center of analysis and reflection. Since “the audit is not a public function left to the discretion of its executor,rather, a process that regulates its validity must be followed; and specifically, to be subject to the norms, guidelines, manuals, guides and procedures ”.
Furthermore, when the new Accusatory Criminal Justice System indicates, in the order binding the process, only the crime charged to the accused will be expressed. The place, time and circumstances of execution, as well as data that establish that an act that the law designates as a crime has been committed and that there is a probability that the accused committed or participated in its commission. In other words, there will no longer be a place for the control and oversight bodies to simply file complaints with the judicial authority, "Who is responsible".
Such if the experts of the Attorney General's Offices, or now the Anti-Corruption Prosecutor's Offices, could establish not only that a crime has been committed but also that the files clearly contain the evidence or reasonable and probative elements of those who, with name and surname, allow to suppose who committed such crimes. And this is where the confusion or complexity is connected with the inoperability of the Anti-Corruption System and the ineffectiveness of the Superior Audit Office of Michoacán in its fight against corruption and impunity.
Likewise, the audit reform must begin with its Principles. In general, a principle is a rule or norm that is met or must be met in order to achieve an end.
In the Superior Audit Law of 2017, it established that its activity would be governed by the principles of legality, speed, efficiency, effectiveness, quality of service, vigilance, timely technical inspection, impartiality, reliability, definitiveness, simultaneously, annually, later., external, independent and autonomous (Article 1, second paragraph). That is, 16 principles.
Now with the recent Law of 2019 and only 10. The speed, effectiveness, efficiency, quality of the service, timely technical inspection and surveillance were eliminated. But reducing principles is a false solution. The principles have been more declaratory than regulatory. How they are demonstrated has been omitted. Which means they are used as starting points, not ending points. Legislating that the audit is governed by sixteen or ten principles is not valid if there is no regulation that allows verifying whether each audit complied with the principles that it accepted to have submitted in its performance.
conclusion
“Public Policy has a double dimension, political and technical, a normative component and a scientific-technical component. On the one hand, they are policy actions, inasmuch as they are aimed at achieving objectives of interest and general social benefit, and on the other, they are actions that are based on a technical-causal reasoning in order to achieve the desired objectives and achieve that the intentions of the rulers become social facts ”.
In this perspective, the inefficiency and non-compliance of the Superior Audit of Michoacán with respect to the raison d'être of its responsibilities derives from the inoperability of the regulations, its Law and secondary regulations. And also due to an obsolete conception of auditing that confuses it with other terms, as well as an audit anchored as a simple technique that does not perceive that the problems facing the Public Administration are of a social and political nature.
The audit, specifically, the one applied in the public sector must transcend the notion of technique, and begin to be constructed as science. While the technique is a way of doing and science is a way of knowing. And the enormous challenges facing societies require questions and more questions to be asked, not only to find answers but to question the answers established in the orthodoxy of auditing and control and also in the strategies that seek to eradicate corruption and impunity.
Consequently, it is necessary to sensitize legislators that the changes or modifications in the control laws have had a reactive nature, and therefore, are late, by giving wrong answers due to the lack of knowledge of the causes of the problems. And that the true reform in the Superior Audit Institutions is not achieved through a short race but through a marathon.
Melián Hernández, José A. Relationships and differences between inspection and auditing. Reasons for a reform of the auditing standards of the public sector, Public Audit magazine, number 39, p. 33.
Merino, Mauricio. It came out worse, eluniversal.com, November 26, 2018.
Collapsed State Anti-Corruption System, they assure that it is not a white elephant, Revolution 3.0, 11/12/2018.
Jacqueline Peschard and the fight against corruption: few achievements, many pending, Proceso.com.mx, 02/08/2018.
Common responsibility that the State Anti-Corruption System does not derail: Miriam Tinoco, Conlupa.com, 11/19/18.
Aguilar Villanueva, Luis F. The implementation of Policies, ed. Porrúa, 1993, p. 17.
At the end of November, the scope of reform to the Superior Audit Office of Michoacán will be known, Answer.com, 11/19/18.
Opinion with Draft Decree amending various provisions of the Superior Audit Law for the State of Michoacán de Ocampo, July 12, 2017, p.13.
Project of the Annual Audit Plan for the Public Account of the Municipal Treasury 2017, environment, June 6, 2018. (bold by the author).
Opinion with Draft Decree, Idem.
Administrative Agreement by which the Superior Audit of Michoacán defines functions of the Internal Authorities in Anticorruption Matters, POE, July 23, 2018.
Judicial Weekly of the Federation and its Gazette, Contradiction of thesis 257/2007-SS, Volume XXVII, February 2008, page 597.
Aguilar, F. Luis. Ditto, p. 13.
