Wednesday, August 28, 2013

Mexico: Mexico's constitutional reform threatens government transparency


The Transparency Collective and México Informate which gathers 15 specialized organizations on access to information and a network of academics and journalists including ARTICLE 19 expresses its profound concern with the terms of the Reform Proposal issued by the Congress' Constitutional Committee, Transparency Committee, and Regulatory and Parliamentary Practices Committee that will modify the Constitution on Transparency and freedom of information matters.

After a long unclear and closed legislative process that did not provide information in a timely manner to civil society, and did not accept open and public consultations, the Reform Proposal has changed for the worse after its discussion in the House of Representatives. The result of the discussion is a proposal that limits the rights of citizens to access government information, and is diametrically opposed to what was originally drafted by the Senate.

The Reform Proposal reached the House of Representatives for deliberation in December 2012. However representatives did not address the proposal until days before the end of the spring session, when it did not reach consensus, fundamentally because the modifications projected by the PRI (ruling party) weakened the public's ability to gain access to important information.

The House of Representatives resumed sessions and voted on the reform proposal with the PRI's modifications on 19 August 2013. Even though certain information pointed to a possible consensus amongst the opposing parties (right wing National Action Party (PAN) and left wing Revolutionary Democratic Party (PRD)) which would block the passing of the proposal, the wavering of the PRD allowed the proposal to acquire enough votes in its favor, and pass. If PRD had resolved to ally with PAN, already blocking the reform, these major setbacks could have been avoided.

The original proposal – first discussed by the Senate – contemplated changing the law governing the Federal Institute for access to Information (IFAI), requiring political parties and labor unions to submit to IFAI's jurisdiction, and be held accountable for all public funds they receive. Political parties and unions are not, at the moment, obliged by the current transparency law to account for the millions of dollars they spend.

At present the transparency and freedom of information law allows citizens to:

- Ask authorities for public information directly
- If the authority denies access to such information, citizens may send their petition to the IFAI
- The institute reviews the request and if it determines the requested information is public, will order authorities to disclose the sought after information

On 19 August, the congressional committees approved provisions that would allow judicial review to the originally definitive IFAI's decisions, in a series of broad and vague exceptions. The President's Legal Advisor, the State General Attorney, the President of the Human Rights Commission and the President of the Central Bank may contest IFAI decisions under alleged affectations to “safety, economic stability and the protection of human rights.” This means subjecting basic human rights to a judicial process, delaying the time frame in which public information may be made available.

Other changes the House of Representatives made to the original Reform Proposal include:

- That although political parties will be subject to the law, they will be supervised by the Federal Electorate Institute, maintaining an asymmetrical relationship between citizens and parties.

- IFAI will not be able to question the general constitutionality of laws, further hindering the protection, in wide and preventative terms, of the right of access to information.

- The criteria under which the commissioners of the Institute are chosen are rigorous to the extreme, on a par with the criteria used to select the Supreme Court Judges, and this excludes the possibility of IFAI having a multidisciplinary and diverse composition, and closes altogether the opportunity to citizens, despite their level of involvement in their work and commitment to transparency.

The changes made by PRI to the reform proposal weaken the transparency framework and neglect sensitive technical requests made by specialists from all fields: academic, governmental, NGO's and civil society; requests that were initially included when the proposal was debated in the Senate.

The reform proposal that was approved by the House of Representatives is considered a backward step in the path to maximum protection of the right of access to information and is in contradiction to Mexico's international human rights obligations.

ARTICLE19 Mexico and the civil society organizations in Mexico call upon the Congress to amend the transparency reform proposal in the extraordinary plenary sessions. We also call on organizations in the international community to speak out against the exceptions in the Constitutional Reform that the PRI has crafted, allowing key political actors to dodge their transparency obligations. There is still time to ensure the effective protection of the right to information and the public scrutiny that is urgently needed for the consolidation of democracy in Mexico.