Transparency and access to information are two key topics that have emerged from Mexico’s political transition in 2000. This article examines the measures taken towards establishing these democratic markers, and argues that these policies have failed to include provisions for punishing the misconduct of public servants in the government.
Codo, Ready Ok, 2006
Certains droits réservés.
The political transition that Mexico experienced at the federal level in 2000 made possible the establishment of policies trying to ameliorate the relationship between the federal government and society. The new administration headed by Vicente Fox (2000-2006) developed laws and policies that sought to strengthen the democratic legitimacy gained at the polls, where the authoritarian regime was finally defeated. But transparency and access to information also require mechanisms to sanction those whose conduct deviates from the law.
The objective in the following pages is to explain why transparency and access to information are linked to the emergence of a more democratic system of rule in Mexico. However, the enactment of measures that promote transparency and access to information has hindered society’s ability to punish the transgressions of those who occupy positions in public office.
Transparency and Access to Information: Two Sides of the Same Coin?
The first thing to keep in mind is that transparency and access to information are not synonymous, though they do serve the same objective: promoting the accountability of the government and its officials, inhibiting the illegal conduct of public servants, and fostering democratic governance. In this sense, they both belong to the overarching subject matter of accountability, a term which entails the capacity of the citizenry to bring public servants to account for their actions while in office.
Transparency can be understood “as the legal, political and institutional structures that make information about the internal characteristics of a government and society available to actors both inside and outside of the domestic political system” (1). Transparency is a condition – a characteristic – that results from the openness shown by public institutions in allowing the citizenry to know how the government functions. Transparency relies on information. The capacity to access the data and records of the government is generally thought of as a right in itself, since political authority derives from the citizenry.
The right of information is based in the free circulation of information, founded also on the capacity that all individuals have to produce, express, obtain-receive and transmit information. Under the democratic and liberal principles, governments play a crucial role, since they not only have to guarantee the free circulation of information, but also promote it – thus obliging them to participate in the process of releasing information that they generate, and sanctioning those who violate that right.
In a liberal democracy, citizens are the original holders of the state’s sovereignty. Information is, in this context, an inherent right of individuals since it divulges how power is exercised – on their behalf – by authorities. Citizens have both the ability and responsibility to supervise the functioning of governmental institutions, which works to establish and promote linkages of representation between citizens and public servants. The former are also responsible for determining mechanisms of sanction to apply to the latter when their behavior deviates from the established norm (2). Accountability, in this context, has two components: first, answerability, which refers to responsibility of the authorities toward citizens for their activities while holding public office; and enforcement, which implies that citizens – those with sovereign power – have the capacity to punish the “improper behavior” of individuals in governmental offices (3).
It is clear that effective schemes of accountability, transparency and access to information go hand in hand with a democratic system of government, where the citizens are the original depositories of the sovereignty of the state – the ultimate and prime authority of power – and where the rule of law is consistently observed by both the rulers and the ruled. There are limits to the information that individuals can access under a democratic regime, but these are exceptions and not the rule; this stands in sharp contrast with the availability of information in authoritarian systems.
Mexican Democracy: On The Right Track
For most of the twentieth century, scholars across a broad range of disciplines in the social sciences have identified the Mexican regime as authoritarian, where civil and political liberties were restricted in the presence of an omnipresent State (4). The political system that emerged from the social revolution of the 1910s and 1920s was supported by two pillars: a hegemonic party –an institution used by political and economic elites to resolve their disputes– and the powers that the Constitution assigned to the President (5).
However, this model of government showed signs of exhaustion at the end of the past century. During most of the 1990s, the country experienced a process of gradual liberalization in the political arena that reached its climax in the federal elections of 2000: after 71 years of rule, Vicente Fox and the National Action Party (PAN, Partido Acción Nacional) won the Presidency of the Republic through their defeat of the Institutional Revolutionary Party (PRI, Partido Revolucionario Institucional).
The jargon of transparency and access to information was first used by the last PRI federal administration headed by President Ernesto Zedillo (1994-2000), but never materialized into policies that really sought to improve the responsiveness of public institutions toward the citizenry. There was no real interest in allowing public scrutiny of the government’s inner-workings, particularly as it could have resulted in a host of corruption scandals (6).
The shift in power at the federal level and the instauration of a democratic government, as explained above, are prerequisites for transparency and access to information. The effective implementation of policies that seek to open the doors of the government to society also requires the enactment of formulas through which the government is responsible to society for its actions (and inactions). That is to say, improving governmental transparency and access to public information is only possible under a democratic regime, because it establishes a two-way relationship between the ruling structures and the citizens.
Once the governmental transition took place, the new Fox administration used transparency and access to information as political instruments to gain support from society. Fox went against the legacies of authoritarianism to attend to the pressures of society to democratize the regime. The political liberalization was indeed the result of decades of social mobilizations (peaceful and violent) that sought to open the governmental structures to public scrutiny (7). But moreover, Fox used transparency and access to information as elements that could define his administration in opposition to corruption and illegality, notions that were associated to the PRI-regime.
In this context, the enactment of the Transparency and Access to Governmental Information Federal Law (LFTAIPG, Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental) by the Fox administration on April 30th, 2002 made subject to social scrutiny all the governmental activities for the first time in the country’s recent history.
The LFTAIPG, since the day it came into force, proved to be a strong tool in supervising the government and public servants. Between 12 June 2002 and 31 August 2007, the Federal Institute for Access to Public Information (IFAI, Instituto Federal de Acceso a la Información Pública) received 237,481 requests to access governmental documents and personal data. The number of requests per month has been increasing constantly over the years since the legislation came into force (8), reflecting to some extent the interest that this mechanism has generated in society.
A Missing Piece?
The Mexican authorities have praised the importance of this federal law in the construction of a true democracy in the country, and as a prime mechanism by which individuals can call to account the ruling institutions and individuals (9). However, this argument is only partially true since neither the LFTAIPG nor the Constitution (or any other federal law) explicitly establish a clear procedure by which citizens can demand governmental accountability, in addition to the regular checks and balances built into the normative/legal framework of Mexico. That is to say, transparency and access to information give – return – to the citizenry the original capacity – sovereignty – to examine the functioning of the public sector, but Mexico’s Constitution lacks actual instruments for the establishment of effective accountability in Mexico. In this sense, what the country has witnessed is a spectacle conducted by the media to exhibit – but not necessarily correct – the corruption of politicians and bureaucrats (10).
Transparency and access to information have proven their value by nullifying the possibility of hiding misuses of political power, which is reflected by the high number of publicized corruption scandals during the Fox administration. Undoubtedly, this can be considered a positive effect of the new governmental transparency, but there is also a negative effect which derives from the normative design of the country’s new system of accountability. The efforts to sanction those who have abused their positions in government have failed. An example of this is the scandal generated by the Mexican ambassador to the OECD who spent 1 million US dollars on four vehicles for the embassy and, among other things, 3,000 US dollars on a bottle opener. The penalty for these abuses was a mere disqualification from occupying positions in public institutions, and no more.
These omissions have created a feeling among the population that the misuses and manipulations of the power delegated to public officers will never be sanctioned. Questions from the general public concern the value this instrument if it also works to undermine public confidence in the democratic regime.
Transparency and access to information cannot be seen only as ends. The process of obtaining data and documents elucidates the day-to-day operation of institutions and the decision-making process of public policy formation. But this must be accompanied with tools by which citizens can demand explanations from the authorities about its actions; tools that help to impose sanctions when it is demonstrated that the conduct of public servants has deviated from law.
Conclusions
In modern liberal democracies, citizens emerge as the fount of its sovereignty. They have the ultimate word in the way in which the state and its structures have to operate. In this sense, through free, fair and competitive electoral processes, the citizenry determines who will govern on its behalf. Those who occupy public offices are gatekeepers of the information produced by the institutions of the state, and are accountable for the way in which the records gathered and produced are employed.
Transparency and access to information are key elements in the construction of democratic governance. When governmental data and archives are released, individuals are able to know how the government is functioning. In countries that are transitioning to more pluralistic forms of government, the approval and enactment of laws that promote and guarantee transparency and access to information constitute a relevant and necessary instrument in the consolidation of a democratic system of rule. But this is only possible when the government acquiesces to the release of data and documents that explain its actual functioning and historical performance.
However, transparency and access to information cannot be seen only as ends. As the case of Mexico shows, accountability cannot be reduced to those two elements. In other words, transparency and access to information are necessary but not sufficient in the establishment of a truly accountable democratic governance. They can be useless if there are no mechanisms through which corruption can be appropriately sanctioned.
It is true, Mexico has taken important steps toward the implementation and improvement of transparency and access to information, but the implementation of policies in such matters cannot be seen as ends. Transparency and access to information are instruments to evaluate the performance of the public institutions and to detect if the conducts of public servants have deviated from law. Transparency and access to information are tools that help in the construction of an accountability system. At the end, the viability and consolidation of the Mexican democracy is linked to the application of policy instruments that return to the citizenry the capacity to supervise the authorities that exercise the popular sovereignty.
References
(1) Bernard Manin, Adam Przeworski and Susan C. Stokes. “Introduction” Democracy, Accountability, and Representation. Eds. Adam Przeworski, Susan C. Stokes, Bernard Manin. New York, Cambridge U.P., 1999: 1-26.
(2) Bernard I. Finel and Kristin M. Lord, “The Surprising Logic of Transparency.” International Studies Quarterly 43.2 (1999): 316.
(3) Andreas Schedler, “Conceptualizing Accountability” The Self-Restraining State: Power and Accountability in New Democracies. Eds. Larry Diamond, Marc F. Plattner and Andreas Schedler. Boulder, Colorado, Lynne Rienner, 1999: 13-28.
(4) See Samuel Huntington. Political Order in Changing Societies. New Haven, Yale U. P., 2006: 318; and Rogelio Hernández, “La Historia Moderna del PRI: Entre la Autonomía y el Sometimiento.” ForoInternacional40.2 (2000): 278-306.
(5) Jorge Carpizo McGregor. El Presidencialismo Mexicano. Mexico City, Porrúa, 1994: 14.
(6) Maria del Carmen Pardo. “La Modernización Administrativa Zedillista, ¿Mas de lo Mismo? Foro Internacional43.1 (2003): 192-214.
(7) Antonio Camou. “Gobernabilidad y Democracia en México. Avatares de una Transición Incierta” Nueva Sociedad128 (1993): 13-14.
(8) Instituto Federal de Acceso a la Información Pública, Reporte Gráfico Mensual. Agosto 2007, Mexico, IFAI, 2007, <http://www.ifai.org.mx/descargar.php?r=/pdf/gobierno/&a=reporte_grafico.pdf>
(9) Eduardo Guerrero Gutiérrez and Leticia Ramirez de Alba. “La Transparencia en México en el Ámbito Subnacional: Una Evaluación Comparada de Leyes Estatales” Democracia, Transparencia y Constitución. Propuestas para un Debate Necesario. Coord. Sergio López Ayllon. Mexico City, Universidad Nacional Autónoma de México – Instituto Federal de Acceso a la Información, 2006: 81-125.
(10) Sallie Hughes and Chappell Lawson. “The Barriers to Media Opening in Latin America.” Political Communication22.1 (2005): 99-5.