The purpose of this essay is not intended to warn that attentiveness or opportune action is taken to correct errors and prevent the National Anticorruption System (SNA) from failing. There is really nothing to do. Some writers have already pointed out that the Anti-Corruption System was born lame, and even dead. And as corruption progresses, the recent Transparency International Report has revealed that in Latin America, Mexico is a leader in corruption. However, the idea of failure is inadmissible in governments, legislatures and political parties, especially now that the Local Systems are implemented in the states in correspondence with the 2015 federal reform. And thus the first limitation derived from the centralist scheme where governments have been imposed and state legislatures are uncritically subordinate to federal laws, and where modifications are not allowed, by invalidating the anti-corruption prosecutors of Chihuahua and Veracruz, the Supreme Court of Justice of the Nation opened the door by strengthening the idea that there cannot be local anti-corruption systems that do not comply with general laws. And in line with the Anti-Corruption Traffic Light of the Mexican Institute for Competitiveness (IMCO) whose mission is "to propose public policies and viable actions."In its analysis of the states' compliance in creating their Local Anti-Corruption Systems on its website as of September 6, 2017, it reports that it has 80% compliance given that the Indicator of the Coordinating Committee of State Anti-Corruption Systems does not designate its members according to the model of the National Anticorruption System. What evidences centralism. Then,Is it valid to submit to a general law when it is wrong?.
It could be argued that for this there are constitutional controversies, however, in the National System and State Systems the error in the design of the legal framework that has given rise to the Anti-Corruption System (second limitation) has not been perceived, and therefore neither In governments or state congresses there are different opinions or discrepancies that could give rise to controversies. But not because they agree means that the anti-corruption public policy will not fail.
And the weakness has been starting from the assumption that the audit is an independent, objective and rigorous professional practice, and also that it fights against corruption. In a note on the First Anticorruption Forum organized by the Mexican Institute of Public Accountants and the College of Public Accountants in January 2016, it was noted that “the Public Accounting Office in Mexico has a lot to say and contribute, as recently stated by the President of the International Federation of Accountants (IFAC)… We are heading towards a new era in this fight. For decades, the global accounting profession, including auditors and professional accountants in business and government, has supported the fight against corruption ”(www.imcp.org.mx). But the above is incorrect, let's see:
- "The question that had been set aside in the Lima Declaration (Magna Carta de la Fiscalización), the discussion on irregularities and fraud, reigned over the desire to avoid that the audit resemble police measures or a criminal investigation." (Bernarhard Friedmann and Hubert Weber, President of the European Court of Auditors and Austrian member of the Court of Auditors, respectively, Public Audit magazine, number 10, June 1997, p. 6) “The audit is not designed to discover fraud” (Pucheta Martínez, MC and Cortés Fleixas, JC Public Audit magazine, number 22, December 2000, p. 42) “It is not the role of the European Court of Auditors to investigate cases of fraud. For this there is the European Office to fight corruption (OLAF) ”(Juan Ramallo, member of the European Court of Auditors,Public Audit magazine, Interview, number 55, November 2011, p. 7) "An audit is not an official investigation of alleged irregularities." (Elena Herrero González, auditor of the Sindicatura de Asturias, Limitations in public audit, magazine Public Audit, number 63, July 2014, p.26). “Concern about detecting fraud is a constant in the world of auditing, despite reiterating that this mission does not correspond to these professionals, but to objectively comment on the faithful image of the financial situation and the results ”(Antonio Arias, Trustee of the Sindicatura de Asturias,“ From Colombo to Robocop ”fiscalización.es, August 10, 2015) "The government audit is not an express tool as an instrument against corruption" (Juan Manuel Portal, Superior Auditor of the Federation asf.gob.mx,Message from the Superior Auditor in the Review of Conclusions and Recommendations derived from the Analysis of IRCP 2009, April 7, 2011).
Then, if in Europe it is recognized that the audit is incompetent to fight corruption, and if the Superior Auditor of the Federation also recognized it, then, why have the Superior Audit and the Superior Audit Institutions of the federal entities to investigate and substantiate the procedure for serious administrative offenses, such as: bribery, embezzlement, diversion of public resources, misuse of information, abuse of functions, action under conflict of interest, improper hiring, hidden enrichment, trafficking in influences and cover-up, according to articles 11 and 51 of the General Law of Administrative Responsibilities?
Development
The main international legal instruments against corruption: The Inter-American Convention against Corruption (CICC) and the United Nations Convention against Corruption (UNCAC). The CICC was created in March 1996 and its main objective is to promote and strengthen mechanisms to prevent and punish acts of corruption. And the preventive measures are:
- Referred to public officials. Rules of conduct.Referred to public institutions. Countries must create, maintain, or strengthen superior control bodies such as comptrollers, audits, or similar offices. Referred to the private sector. Referred to citizens. Participation.
And the UNCAC aims to: Promote and strengthen measures to prevent and combat corruption more effectively and efficiently. And in point number 2, preventive measures refer to those related to public institutions. And it says " Governments must have adequate accounting and auditing procedures."
And the International Organization of Supreme Audit Institutions (INTOSAI) has issued the Audit Directive for the prevention of Corruption, ISSAI-5700, establishing the following points:
- Incorporate corruption and irregularity issues into routine SAI audit work Increase public awareness of corruption and other irregularities by timely and public disclosure of SAI audit findings. Improve methods and tools to combat corruption and other types of crime. Provide a means for whistleblowers to report infractions. Cooperate with other institutions in the fight against corruption.
When the CICC establishes that governments must create, maintain or strengthen comptrollerships or audits, it seems correct, but it is not. Since creating is not synonymous with maintaining or strengthening. It is only created when something new is established or founded, and on the contrary, to maintain is to make a thing continue in a certain state, situation or operation. And strengthening is giving more energy or vigor to an activity or institution. And the General Law of the National Anticorruption System of Mexico, indicates the guidelines to follow to strengthen the control and oversight bodies:
“I. Effective work coordination.
- Institutional strengthening.
III. Avoid duplication and omissions in the work of the inspection bodies, in an environment of professionalism and transparency.
- Greater coverage of the inspection of public resources. Issue relevant information in audit and oversight reports… ”(Article 46).
And it seems that it is very easy and simple to recommend that relevant information be issued. It would be necessary to remember what Francisco Barrio, head of SECODAM (now the Ministry of Public Function), said: “If you see the type of reports that exist from the audits of recent years, the observations are rather superficial, they refer to 90 % of the cases, merely to questions: that if the pink copy was missing, that if the stamp of I do not know what was missing. Since the auditor is used to not digging too deep, then, we are few and used to working on the surface ”(El Universal, April 24, 2001, p. A 6). Which coincides with, "A review by the Superior Audit of the Federation to the work of the Ministry of Public Function in 2011 found that the agency does not argue well in court,They allow months or years to present evidence against allegedly corrupt or incurred failures that led those responsible to win in court ”(“ Political corruption, satiety ”el universal, com.mx, August 27, 2017). However, the head of the Superior Audit of the Federation regarding his own work says "the lack of punishment of former officials or former governors for acts of corruption, has not been due to lack of ASF work but due to delays of instances as the Office of the Attorney General of the Republic (…) of 740 criminal complaints that the ASF has filed with the PGR, only approximately 30 have been resolved (without informing whether they were in a favorable or unfavorable sense to the Superior Audit), in my opinion, it is not is that you don't want to do it, but there is a backwardness ”(PGR lags the punishment for acts of corruptionquadratin.com.mx, May 24, 2015). And in relation to this same note, it justifies “we are not fishermen, we are auditors. Do not misunderstand, we do not wash our hands, it is not our function, you review our law, it is not our faculties to put people in jail, nor to fish big shots, that is not our function, we do audits, we present results of the review of how public resources are spent, how income is obtained ”(ASF lists up to 400 complaints of irregularities in Public Account 2015, news, televisa.com. May 23, 2017).nor fishing big shots, that is not our function, we do audits, we present the results of the review of how public resources are spent, of how income is obtained ”(ASF lists up to 400 complaints of irregularities in Public Account 2015, news, televisa.com. May 23, 2017).nor fishing big shots, that is not our function, we do audits, we present the results of the review of how public resources are spent, of how income is obtained ”(ASF lists up to 400 complaints of irregularities in Public Account 2015, news, televisa.com. May 23, 2017).
Then, if the Coordinating Committee is the body responsible for establishing coordination mechanisms among the members of the National System and is in charge of designing, promoting and evaluating public policies to combat Corruption (Article 8 of the General System Law National Anti-Corruption). Yes, the Superior Audit of the Federation is a member of the Coordinating Committee, and it has been approved that the ASF and the Superior Inspection Entities of the federal entities are competent to investigate and substantiate serious administrative offenses. So, is not the position of the Superior Auditor of the Federation incongruous?
More when he has written “This is the most important initiative (SNA) in the field of government auditing in Mexico and given the urgent need to act against corruption, I consider it appropriate that we take into account some risks that may compromise its success. First, if we assume that the System is based on technical elements to achieve its goals, we must be especially alert to any attempt to politicize its operation. A second factor is represented by citizen participation, and could be bureaucratized or be immersed in incentives that are originally what it is struggling to avoid. And thirdly, a distinction must be made between subjecting the System to evaluations to improve it and turning it into a forumfocused on questioning institutions ”(Juan Manuel Portal, Risks on the horizon, el universal.com.mx, November 12, 2015).
Two considerations to the previous quote that I have highlighted in bold. The first, the thinking of the audit, and therefore of the audit, has been based on the fact that "it is based on technical elements". And the world of auditing and control has promoted the image of neutrality in its practice or work, since it dissociates the auditor from the object of the audit, thus the auditor is considered to become a distant and neutral observer of the facts that he reviews. And this supposed neutral analysis has legitimized him in society as a “neutral technician”. For this reason, the notion of independence is the fundamental concept in auditing and control. However, since the Enron case going through the scandals where the offices of auditors of all sizes have been involved,as well as the murky and suspicious participation of control and inspection bodies has originated the lack of credibility in the audit and inspection, therefore the irruption of novel phenomena, such as the citizen audit and the citizenization of the inspection. And the National Anticorruption System in Mexico is a clear example of this. Given that the Citizen Participation Committee aims to contribute to the fulfillment of establishing the minimum bases for the prevention of acts of corruption and administrative offenses, as well as the issuance of comprehensive public policies in the fight against corruption, in the inspection and control of public resources. For this, the General Law of the SNA, in its article 16,has established “The Citizen Participation Committee will be made up of five citizens of honesty and prestige who have stood out for their contribution to transparency, accountability, which shows that it did not matter for this purpose to have outstanding citizens in the audit and audit. And it was demonstrated by appointing them: an actuary, a lawyer, two sociologists and one from political science. And finally, the request of the Mexican Institute of Public Accountants (IMPCP) to include in the Citizen Participation Committee representatives of public accountants experienced in the public sector was rejected.And it was demonstrated by appointing them: an actuary, a lawyer, two sociologists and one from political science. And finally, the request of the Mexican Institute of Public Accountants (IMPCP) to include in the Citizen Participation Committee representatives of public accountants experienced in the public sector was rejected.And it was demonstrated by appointing them: an actuary, a lawyer, two sociologists and one from political science. And finally, the request of the Mexican Institute of Public Accountants (IMPCP) to include in the Citizen Participation Committee representatives of public accountants experienced in the public sector was rejected.
As the accusation of the former auditor of the Federation, Arturo González de Aragón, has also been ignored, pointing out that “six of the nine members are part of the Network for Accountability (…) and four of the five members of the Citizen Committee they were proposed by the heads of the organizations that are part of the Network ”(Evidence of cheating in the anti-corruption system, eluniversal.com.mx, June 29, 2017). In this sense, those who have directed the Anti-Corruption System are foreign to the world of auditing and oversight. Then, how professionals from actuaries, advocacy, sociology and political science will be able to issue public policies in the fight against corruption, oversight and control of public resources?
Yes, the Anticorruption System has prioritized the punishment, sanction and typification of new crimes but has not paid interest or attention to the evidence. For example, in the Law of Superior Audit and Accountability of the Superior Audit of the Federation, in article 67 and section III, it says “If irregularities are detected from the inspection carried out by the ASF, the Superior Audit of the Federation will proceed a: Present the complaints and criminal complaints to the Specialized Prosecutor's Office, for the probable crimes that are detected derived from the audits ”. The above indicates:
- Despite the fact that the Anticorruption System is aimed at the prevention and investigation of acts of corruption, in the audit law in comment the use of the notion of 'irregularities' dilutes its action or main object by losing intensity or relevance. will be detected ”is subordinated to the ability to capture, observe, or perceive facts or phenomena that are not noticeable to the naked eye. But nowhere in the legal framework of the Anti-Corruption System is the method, procedure or technique that auditors will use to detect and investigate serious administrative offenses indicated. And That audits detect probable crimes is contrary to the audit's thinking as shown.
And the second is exemplary that the Superior Auditor of the Federation does not consider that the greatest risk to the success of the Anti-Corruption System is the inability of the audit to prevent, investigate and sanction acts of corruption. Juan Manuel Portal himself had declared it "the government audit is not an express tool as an instrument against corruption." But also since the end of the last century the OECD recommended a framework for action to fight corruption through the creation of specialized agencies. For this reason, the current debate "may assume more functions and powers (linked to the prevention and fight against fraud and corruption) or may improve the classic strengths of the external control system" (Enrique Benítez Palma,Counselor of the Andalusian Chamber of Accounts, The coexistence between the External Control Bodies (OCEX) and the Autonomous Agencies for the prevention and fight against corruption, magazine Public Audit, number 69 VI, p. fifteen). And it is also worth mentioning that for the head of the ASF, questioning the institutions represents a risk. And if he had put in the first instance the risk "the System is based on technical elements to achieve its goals, we must be alert to any attempt to politicize its operation." Then it is inferred that it refers that the operation or work of the Superior Audit of the Federation and the Superior Inspection Entities should not be questioned.Public Audit magazine, number 69 VI, p. fifteen). And it is also worth mentioning that for the head of the ASF, questioning the institutions represents a risk. And if she had put in the first instance the risk "the System is based on technical elements to achieve its goals, we must be alert to any attempt to politicize its operation." Then it is inferred that it refers that the operation or work of the Superior Audit of the Federation and the Superior Inspection Entities should not be questioned.Public Audit magazine, number 69 VI, p. fifteen). And it is also worth mentioning that for the head of the ASF, questioning the institutions represents a risk. And if she had put in the first instance the risk "the System is based on technical elements to achieve its goals, we must be alert to any attempt to politicize its operation." Then it is inferred that it refers that the operation or work of the Superior Audit of the Federation and the Superior Inspection Entities should not be questioned.We must be alert to any attempt to politicize its operation. " Then it is inferred that it refers that the operation or work of the Superior Audit of the Federation and the Superior Inspection Entities should not be questioned.We must be alert to any attempt to politicize its operation. " Then it is inferred that it refers that the operation or work of the Superior Audit of the Federation and the Superior Inspection Entities should not be questioned.
For this reason, the question “ How can one speak of the effectiveness of the audit without evaluating the effectiveness of the auditor himself? (…) It is not by asking long and hard questions about the content of the objectives that represent good management and the reduction of corruption that SAIs are going to improve their management and thereby contribute to achieving them, but: constantly improving their methods and their competencies. And practicing self-evaluation ”(France: The role of Supreme Audit Institutions in the fight against corruption and in the promotion of Good Management. Report of the 12th United Nations / INTOSAI Seminar on Government Auditing, October 1996, Vienna, pp. 62-70).
But self-evaluation is not frequent in the Supreme Audit Institutions, but neither in those who preach the improvement of the audit and the fight against corruption. Either after so many years that the United Nations Convention against Corruption has recommended that governments should have adequate audit procedures, or INTOSAI recommended that methods and tools to combat corruption should be improved, or France recommend the improvement of methods and skills, has progress really been made?
And to what extent the use of vague, imprecise and lacking language in the world of auditing and control has led to its limited results. Or, what are the proper audit procedures to investigate and prove acts of corruption? and Why does method continue to be confused with procedure?
The lack of rigor in the thinking of auditing and oversight, the lack of attention to the complexity of developing these practices in the public field, and the lack of presence of auditors in the design of the Anti-Corruption System are leading this System to failure.
conclusion
Gary Becker, Nobel Prize in Economics, "maintains that deterring the criminal behavior of the corrupt will depend on the probability of detection and sanction, as well as the penalty imposed." And in Mexico, the National Anticorruption System is linked to the creation of the Anticorruption Prosecutor's Office, and with the new Prosecutor's Office, it will be the prosecutors who will decide whether or not to proceed with criminal proceedings. Initially, it had been approved that the head of the Office of the Attorney General of the Republic was the Anticorruption Prosecutor, however, suspicion of its autonomy motivated the withdrawal of such proposal. To the extent that on October 16, 2017, Raúl Cervantes, Attorney General of the Republic, resigned from the post, affirming that “appointing the Inspector will have no effect if the entire institution of law enforcement is not designed from scratch.And in this one we continue working with tools and mentality of the last century ”.
Thus, the hundreds of cases that have been presented by the Superior Audit of the Federation and the State Control and Inspection Bodies will continue to “sleep the sleep of the just” and, therefore, the absence of sanctions strengthens impunity and the commission of corruption. But although, at least, there is already a recognition of the failure of the law enforcement, in the Inspection Entities there is no such, and perhaps they also continue to work with tools and mentality of the last century?
But the idea of failure in the control and inspection entities is linked to defeat, to recognizing errors not only in their practice but in their foundations and principles. This seems unlikely despite the failure of the audit. But when it is recognized that the action designed through the Anti-Corruption System does not produce the expected effects, perhaps the perspective will be recovered that before designing and implementing an Anti-Corruption Public Policy, it would be necessary to rethink if the audit has the conceptual tools to investigate and test the acts of corruption, and yes the State Superior Audits and Comptrollers do not require a true transformation.
Mario Alberto Gómez Maldonado
