Mexico’s President, Enrique Peña Nieto, has promulgated the Constitutional Reform regarding the creation of the National Anticorruption System.
The decree containing such legislation refers exclusively to amendments required by the Mexican Constitution to enable Mexico’s Congress to legislate secondary anticorruption laws, which is likely to happen during the next ordinary sessions period of the Congress (starting September 1).
The main reforms contained in the Decree can be summarized as follows:
- The extinction of domain as a penalty will be applied not only in cases of organized crime, felonies against public health (e.g. drug trafficking), kidnapping, car robbery and human trafficking, but also to unlawful enrichment.
- Internal controllerships of governmental agencies will now be appointed by the House of Representatives (Cámara de Diputados) and the authority of the Federal Superior Audit Office is increased to allow that office to accurately audit the use of federal proceeds by the different governmental levels. The Judicial Branch shall be now also subject to scrutiny and review by the Federal Superior Audit Office.
- The Mexican Congress shall be entitled, inter alia, to:
- Issue laws regulating the organization and authority of the Federal Superior Audit Office, as well as those setting forth the coordination rules applicable to the National Anticorruption System.
- Issue the law whereby the Federal Administrative Justice Court (FAJC) is created.
- Issue laws regarding the jurisdiction of the different governmental levels to assess administrative liability of public officers, as well as their obligations and the applicable sanctions.
Such secondary laws shall be approved within one year from the Decree's publication date. In the meantime, laws regarding the administrative liability of public officers, as well as those applicable to scrutiny and control of public resources, shall continue to be effective.
- The FAJC shall be autonomous and will be the competent court to resolve all disputes arising between the public administration and the private sector. Such court shall act in plenum and regional chambers.
- Public officers have a constitutional obligation to present, under oath, patrimonial and interests statements before the competent authorities. They shall also be penalized for acts or omissions affecting the legality, honesty, loyalty, impartiality and efficiency that they are obliged to observe in the performance of their positions. Such punishments shall consist of warnings, suspension, destitution and disqualification to occupy public service positions, as well as economic sanctions. Such responsibility is irrespective of any civil, criminal or any other liability that could arise from the behavior of public officers.
- Private individuals and entities are also subject to punishment by reason of their intervention in any act related to severe administrative faults. Such punishments may consist of economic sanctions, debarment to participate in public tenders for the acquisition or lease of goods, services or public works, as well as the indemnification for the damages and prejudices caused to the public treasury or governmental agencies (whether federal, local or municipal). Likewise, in case of administrative faults committed by individuals acting on behalf of companies, the competent authorities shall be entitled to order the suspension of activities, dissolution or intervention of the relevant company. Such responsibility is irrespective of any civil, criminal or any other liability that could arise from the behavior of private individuals and/or entities.
- The National Anticorruption System shall be the authority in charge of coordination with the competent authorities of all governmental levels to prevent, detect and penalize administrative responsibilities and corruption practices.