Mexico: Anti-Corruption In Mexico: Reasons For Cautious Optimism

Mexico's anti-corruption enforcement regime, the National Anti-Corruption System (NAS), was adopted by Mexico's Congress on July 6, 2016, and approved by President Peña Nieto on July 18, 2016.1 While approval of the NAS marked an important step forward in Mexico's reform efforts, since that time the NAS has suffered a series of setbacks and delays, as the Peña Nieto government has stalled implementation of many key aspects of the NAS.2 Nevertheless, as the recent resignation of Mexico's attorney general, Raúl Cervantes, demonstrates, there is reason to be cautiously optimistic. A longtime member of the ruling PRI party and a close ally of President Peña Nieto, Cervantes cited the ongoing debate in Mexico surrounding the appointment of an independent anti-corruption prosecutor as the reason for stepping down.

Cervantes' resignation signals a potential victory for a broad coalition of anti-corruption activists in their demands for a truly independent prosecutor — a central pillar of Mexico's anti-corruption reform efforts. More broadly, Mexican civil society groups, made up of academics and activists alike, are heavily engaged in the implementation of the NAS and are pushing for reforms despite what may seem like the current presidency's attempts to frustrate substantial progress. At the same time, these groups face an uphill battle, working with few resources and against a culture where corruption is viewed as a price of conducting business that will not be easy to overcome. Should these groups succeed and an independent prosecutor ultimately be appointed, companies doing business in Mexico should expect to see an increase in corruption investigations, as well as increased coordination between U.S. and Mexican enforcement authorities, which may also result in a spike in U.S. prosecutions.

Role of Civil Society in Passage of the NAS

The enactment of the NAS resulted from persistent engagement and pressure by Mexican civil society groups more than a top-down political initiative. Peña Nieto presented his own, watered-down anti-corruption reform bill in November 2012, but the proposal was poorly received. Disappointed with Mexico's federal government, civil society groups, academics and activists presented their own, more comprehensive version of the legislation. Civil society groups held closed-door meetings with Mexican authorities to advocate for the creation of the NAS and utilized a legal mechanism called a "citizen initiative" — a bill presented by citizens that Congress is legally required to discuss if it is backed by at least 110,000 signatures. In the end, 634,000 citizens signed their support for the bill, forcing Congress to eventually pass the legislation, after trying several times to reduce its scope. Enactment of the NAS thus marked a critical achievement for Mexico's civil society against an otherwise lackluster government-led reform effort.3

There are several factors thought to be driving Mexico's growing intolerance of corruption, despite a corruption climate historically resistant to reform. A growing middle class is demanding accountability and improved public services in the face of what seems like a constant slate of corruption scandals throughout the government, together with the highest violent crime rates Mexico has seen in 20 years.4 Social media is being used to expose corruption schemes that previously would have remained hidden and to mobilize citizens.5 Finally, President Peña Nieto's own corruption scandal — his wife and finance minister purchased homes on credit from a government contractor close to the president — energized activists to push for an independent anti-corruption enforcement regime.

Critical Issues Impacting Success of the NAS

Despite the citizenry's success in promoting effective anti-corruption legislation, the Mexican government has not taken necessary steps to implement the legislation. Most notably, the legislation provides for an independent prosecutor within the attorney general's office, a key component of a strengthened anti-corruption enforcement regime, but that position has not yet been filled and it remains unclear how it will be financed.6

Cervantes was named attorney general in October 2016 and was approved overwhelmingly in the Senate. Civic leaders harshly criticized his appointment as an obstacle to fully implementing the NAS, and opposition parties and members of citizen movements mobilized using the hashtags #VamosPorMas (#Let'sGetMore) and #FiscaliaQueSirva (#Prosecutor'sOfficeThatWorks) to oppose Cervantes' nomination.7 Citizens groups also prepared a second citizens bill that would reform the attorney general's office to ensure an independent prosecutor separate from the attorney general's office to investigate corruption.8 Faced with these criticisms, President Peña Nieto proposed a constitutional change in November 2016 that would place the Senate in charge of appointing the independent prosecutor. While the legislature passed the measure, the position of the independent prosecutor remains open with no one appointed to the role.9

In October 2017, Cervantes resigned his post, citing this debate over the appointment of an independent prosecutor, handing a victory to anti-corruption activists.10 Cervantes claimed that Mexico's legislature would soon be discussing "new initiatives related to the attorney general's office" and he decided to resign, "in order to not further delay the laws that Mexico needs."11 Cervantes was viewed by anti-corruption activists as Peña Nieto's attempt to shield the party's powerbrokers from investigation.

Despite the recent successes of civil society groups with respect to the independent prosecutor, Peña Nieto's government has continued to take steps to shield itself from legal scrutiny. Recently, the acting attorney general dismissed the Mexico's top electoral crimes prosecutor, Santiago Nieto, after he complained that the former head of Mexico's state oil company demanded that he close an investigation into campaign contributions from Brazilian construction company Odebrecht.12 In response to the firing, civil society groups and opposition groups denounced the dismissal as another attempt by Peña Nieto's government to shield itself from corruption investigations.13 The Senate also has not appointed 18 judges to specialized courts created to adjudicate serious corruption-related administrative offenses committed by public servants, individuals, and corporate entities, and almost half of Mexico's 32 states have not passed anti-corruption legislation required at the state level.

These will be areas where enhanced citizen engagement will be critical to ensure that entrenched governmental interests do not thwart reform. This is also where the Citizens Participation Committee can play an important role. One of the unique features of the NAS is the incorporation of a Citizens Participation Committee into the law's framework. The CPC is one of several committees charged with helping to oversee the NAS, but, unlike other NAS committees, the CPC is staffed by five anti-corruption activists rather than by bureaucrats with ties to the major political parties. A representative of the CPC sits on the Coordinating Committee, which oversees the coordination efforts among the country's various anti-corruption enforcement agencies at the national and local levels. The other primary purpose of the CPC is to liaise between the NAS and civil society in order to achieve the objectives of the NAS. The CPC is intended to channel inputs from civil society into the work of the NAS and to oversee progress and results. Using their access to the CPC, citizens can more effectively pressure government leaders and hold accountable their government in upholding the key performance indicators of the NAS.14

The current president of the CPC is Jacqueline Peschard Mariscal. Mariscal has worked at the Federal Electoral Institute and the access-to-information agency IFAI, and will serve as CPC president for one year.15 Peschard Mariscal is one of a number of citizen leaders in Mexico working to support reform efforts, often with little resources and in the face of personal peril. Another individual playing a leading role in Mexico's reform efforts is Maria Elena Morera, president of the Mexican civic organization Common Cause.16 Morera's husband was kidnapped in 2001, inspiring Morera's fight against corruption. Morera negotiated with her husband's kidnappers, five of whom were ultimately arrested and convicted.17 Morera works to strengthen public accountability and the rule of law in Mexico, and is a strong advocate for eliminating the prevalent violence in Mexico. While these leaders and others have provided immense leadership and enjoyed success in bolstering Mexico's anti-corruption regime, the lack of resources available to them remains a concern for these citizen efforts going forward.

The success of Mexico's civil society in pushing for reform suggests a new era for corruption enforcement in Mexico. With a presidential election in July 2018, citizen engagement continues to play an important role in these reform efforts. Though Peña Nieto and other members of the PRI have little incentive to strengthen Mexico's anti-corruption enforcement regime since they may soon be out of power following next year's elections, cautious optimism for Mexico and its citizens seems appropriate. Presidential candidate Andres Manuel Lopez Obrador is the early frontrunner for the 2018 presidential election.18 His likely electoral victory may inspire the appointment of an independent prosecutor prior to the 2018 election to avoid Lopez Obrador's own selection. The campaign success of Lopez Obrador, the rise of social media, the renewed presence of citizens groups in Mexico's political culture, and an inspired demand for transparency suggest that anti-corruption reforms are likely to progress, albeit at an uneven and uncertain pace. Should an independent prosecutor ultimately be appointed, companies doing business in Mexico should expect to see an increase in corruption investigations, as well as increased coordination between U.S. and Mexican enforcement authorities, which may also lead to a spike in U.S. prosecutions.

Footnotes

1. Viridiana Rios, Mexico Wins: Anti-Corruption Reform Approved (July 18, 2016) available at https://www.forbes.com/forbes/welcome/?toURL=https://www.forbes.com/sites/themexicoinstitute/2016/07/18/mexico-wins-anti-corruption-reform-approved/.

2. The Economist, Mexico and its NGOs: The New Movers and Shakers (May 2, 2015), available at https://www.economist.com/news/americas/21650136-they-dont-wear-balaclavas-or-wave-banners-they-are-bringing-about-change-new-movers-and.

3. El Instituto Mexicano para la Competitividad and Transparencia Mexicana, The Road Towards Ending Corruption: Mexico's National Anticorruption System (Sept. 2016), available at http://imco.org.mx/wp-content/uploads/2016/10/2016-SNA-Road_against_Corruption-Documento.pdf.; The Wilson Center, Mexico Wins: Anti-Corruption Reform Approved (July 12, 2016), available at https://www.wilsoncenter.org/article/mexico-wins-anti-corruption-reform-approved.

4. David Agren, Mexico's Monthly Murder Rate Reaches 20-year High, The Guardian (June 21, 2017), available at https://www.theguardian.com/world/2017/jun/21/mexicos-monthly-rate-reaches-20-year-high; Elisabeth Malkin, Corruption at a Level of Audacity 'Never Seen in Mexico,' The New York Times (Apr. 19, 2017), available at https://www.nytimes.com/2017/04/19/world/americas/in-mexico-mounting-misdeeds-but-governors-escape-justice.html?_r=0.

5. The Economist, Stop Stealing: What Lies Behind the Popular Revolt Against Corruption (May 5, 2016), available at https://www.economist.com/news/americas/21698269-what-lies-behind-popular-revolt-against-corruption-stop-stealing.

6. Juan Montes, Mexico's Anticorruption Efforts Stall, The Wall Street Journal (July 19, 2017).

7. Anthony Harrup and Juan Montes, Mexican President Enrique Peña Nieto Yields to Criticism Over Independent Prosecutor, The Wall Street Journal (Nov. 29, 2016).

8. Id.

9. Id.

10. Reuters, Mexico Attorney General Resigns Amid Debate on New Top Prosecutor (Oct. 16, 2017), available at https://www.reuters.com/article/us-mexico-politics/mexico-attorney-general-resigns-amid-debate-on-new-top-prosecutor-idUSKBN1CL2LP.

11. Id.

12. Mark Bocchetti, Mexico Fires Prosecutor Over PEMEX-Odebrecht Probe, but Civil Society Groups Cry Foul, mLex (Oct. 23, 2017).

13. Id.

14. Network for Integrity, Mexico's National Anti-Corruption System (Mar. 8, 2017), available at http://www.networkforintegrity.org/mexicos-national-anti-corruption-system/.

15. Mexico News Daily, Citizens' Committee Set for Corruption Fight (Feb. 25, 2017), available at http://mexiconewsdaily.com/news/citizens-committee-set-for-corruption-fight/.

16. The Wilson Center, https://www.wilsoncenter.org/person/maria-elena-morera (last visited Nov. 6, 2017).

17. Id.

18. The Economist, Mexico's Populist Would-Be President (March 16, 2017), available at https://www.economist.com/news/americas/21718906-mexico-city-we-have-problem-mexicos-populist-would-be-president.

This article was published by Law360 on November 29, 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions