Translated by Patricia Mitchell
The constitutional design of the Federal Prosecutor General is flawed. Nonetheless, if the political class truly wants an autonomous and powerful institution for criminal prosecution, there is still time to correct this.
MV Note: In 2013, the first year of the Peña Nieto six-year administration, constitutional amendments were passed to create a Federal Prosecutor General (Fiscalia General de la Republica, FGR), to replace the existing Attoney General's Office (Procuraduría General de la Republica, PGR). The head of the new FGR is to be nominated by the President and approved by the Senate for a nine-year term, deliberately extending beyond changes of the presidency. Citizens groups,
The FGR is to be an "autonomous institution", free of interference by the President or Congress, as the PGR, as described below, has historically been an instrument of the president to control and punish opponents. In 2014, secondary laws implememting this reform were passed.In 2016, legislation was passed establishing a multi-agency Anti-corruption System, including a Special Anti-corruption Prosecutor in the PGR.To that aim, they need to repeal the nineteenth transitory article of the Constitutional Reform of 2014 [transitory articles as instructions governing the implementation of a law]. Per the nineteenth article, as the Federal Prosecutor General comes into effect, the new autonomous constitutional body [free of direct control by the president] inherits as its foundation the personnel, budget, and financial and material resources of the PGR [Attorney General’s Office]. In other words, the Prosecutor General starts out already behind in terms of the inefficiency, mistrust, weakness, and corruption of the PGR. Why create an autonomous constitutional body at the level of importance of the Prosecutor General with such almost insurmountable limitations?
One of the characteristics that distinguishes any such institution is its enormous resistance to change. Bureaucracies develop, and with the passage of time, work routines and institutional ideologies are very difficult to change. In the case of the PGR, it is important to understand that the institution was created under the demands of an authoritarian regime, in which criminal prosecution became the primary credible threat of punishment for detractors of those in power. This demanded that the institution function with a high degree of discretion and political manipulation, as well as a strong internal obedience on the part of the officials in the system—the Judicial Police [investigative police] and the Public Ministry [prosecutors]—to the head of the institution, who in his own right was aligned with the interests of the president in office. In addition, this coercive machine required a weak and simple court system, purely dedicated to endorsing the prosecutors’ accusations without any type of control or oversight of their methods.
All of this created the justice prosecution system that we have now, which winds up benefiting those who have the ability to manipulate and corrupt it: criminals, crooked police officers, corrupt public officials and politicians, and all those with the connections and economic power to pay off the system. The old internal obedience of the officials in the system to the head of the institution has broken down. Now, to varying degrees, many of these officials have the power to negotiate the application of criminal law and “sell” impunity in a decentralized way. In other words, the old market of impunity and negotiation of punishment has fractured.
MV Note: Under the seventy-year-long, single-party rule of the Party of the Institutional Revolution, the PRI, (1930-2000), the President controlled the use of the justice system. When the PRI lost the presidency in 2000, it lost this control. The election of PRI member, Peña Nieto, did not result in a restoration of this centralized control.A criminal prosecution system so weak and malleable has not had a chance to develop technical means to investigate and resolve cases of complex crimes. It has made very little impact on the prosecution of relevant criminal activity. In other words, the prosecution of justice in Mexico is like a 1970s-era beat-up car trying to drive on a modern highway of the early 21st century. However, this “beat-up car” continues to have fundamental political utility: it continues to be malleable and controllable from the upper echelons of power.
The only effective way to design the Federal Prosecutor General to serve the people (and not political interests) is not to reform an obsolete institution like the PGR. Today we should be debating how to design a Federal Prosecutor General highly capable of responding to the demands of security and justice for the people. We must also debate how to achieve an institution that attracts the best management staff possible in prestige and in respectability. All of this requires that the Federal Prosecutor General start from scratch without inheriting the bureaucratic structure of the PGR. Who from the political class has the courage to present a constitutional reform initiative to make this possible?
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*Ana Laura Magaloni Kerpel, Doctorate in Law, Autonomous University of Madrid (Spain); Research Professor, National System of Researchers at Center for Research and Economic Teaching (CIDE). Research Areas: Supreme Court and Comparative Constitutional Justice; Empirical Studies of Institutions of Justice; Institutions of Prosecution and Enforcement of Justice.