Taking Stock of the Mexican Government’s Rebranded Whistleblower Program

Versión en español: Balance del nuevo programa de denunciantes del gobierno mexicano

 

Mexico’s 2015 constitutional reform related to combatting corruption prompted public decision-making about a complete and sufficient legal framework for reporting acts of corruption and protecting whistleblowers. According to official data, only 1 in 100 acts of corruption are reported in Mexico, and only a few of these reports are considered actionable or are even investigated. For this reason, the government’s actions to promote reporting and to ensure the protection of those who report have raised the profile of the role of internal and external whistleblowers to such an extent that the term “alerter” (alertador) has been coined—although the term is different from the concept of “whistleblower” (denunciante), official data does not clarify the difference between one and the other—to apparently set aside the stigma that the term “whistleblower” has had in Mexican society. However, this project has remained only one attempt in the face of a lack of political will to promote real change.

What tools do reporters of acts of corruption have?

The role of whistleblowers in a democratic society is fundamental. Citizen involvement to denounce irregularities encourages accountability, strengthens the exercise of freedom of expression, promotes citizen participation in public affairs and allows the enforcement and defense of people’s rights. In a significant number of cases, it is the whistleblowers who provide the necessary information for authorities to initiate investigations related to improper acts and who share with authorities indications or indirect evidence of acts of corruption. In the best cases, whistleblowers provide direct evidence to prove a fault by a public servant or an individual. Whistleblowers—a term that has historically been used in Mexico, along with newly rebranded “alerters”—are the pillar of an effective system of the responsibilities of State functionaries.

In Mexico, means and mechanisms have been established in the criminal and administrative courts to denounce improper acts by legally bound entities—generally, public servants. Administratively, the federal government has enabled two parallel systems operated by the Ministry of Public Administration (SFP), dependent on the President of Mexico: (1) the Comprehensive System of Citizen Corruption Complaints (SIDEC); and, more recently, (2) the Internal and External Citizen Alerters of Corruption Platform. I will focus on the latter, given the addition that the administration has made of the concept of “alerter”, although it is important to say that both platforms are intended for people to report acts of corruption.

Towards the redefinition of the “whistleblower” of acts of corruption

Previously, SIDEC was the only electronic platform of federal public administration that allowed complaints against public servants for possible acts of corruption. The turning point was on July 24, 2019, with the arrival of the electronic Internal and External Citizen Alerters of Corruption Platform managed by the SFP.

With the new platform, the SFP coined, through an internal agreement, the concept of “alerter” – previously, there was only the concept of “whistleblower” to refer to people who report acts of corruption – and defined it as the person who communicates prior to the start of an administrative procedure and provides information on improper acts by public servants.

The figure of the “alerter” is a novel concept internationally, although to date there are no official documents or reports that clarify what the intention or objective of the Mexican government was when creating the term “alerter” and differentiating it from the “whistleblower”, if that was in fact the intention.

From the perspective of some civil society organizations, the term “whistleblower” is limited to certain regulatory frameworks and systems, such as SIDEC, and to acts, such as serious administrative offenses; that is, the scope of application is focused on the General Law of Administrative Responsibilities. On the other hand, the term “alerter” allows other types of irregularities to be pointed out and protection measures to be triggered by the simple alert.

The aforementioned platform for alerters regulates the rights of an alerter in accordance with international standards, provides protection measures for their benefit such as psychological care, legal assistance, job relocation and protection for the whistleblower from being sanctioned or retaliated against. This is all new, even from an international perspective, because in Mexico this type of measure was not provided for whistleblowers of acts of corruption in administrative channels, even in SIDEC. In addition, the platform recognized the anonymity  of alerters provided for in the 2017 General Law of Administrative Responsibility, although alerters may also submit their report disclosing their identity and requesting that that their identity and information be kept confidential. This General Law also configured a digital non-traceability system and considered alerters’ degrees of risk, although this was only to determine the protection measures that might be granted.

Although there is no clarity in Mexico about the differences between the figure of the “whistleblower” and that of the “alerter”, the new platform of the public administration redefined the pre-2019 concepts of reporting[1]. This gave the “alerter” a new platform and published secondary guidelines aimed at defining the operation of the citizen alerter system and the way in which the protection measures it provides for can be requested and implemented. Perhaps the government intended to ensure that the concept of “alerter” would give fresh air to the concept of reporting corruption and would remove the shadow of the word “whistleblower”. Perhaps it was also intended to lessen the systemic causes that incite fear in people reporting corruption, which has led to a progressive decrease in the use of SIDEC, lacking protection measures for the benefit of the person reporting corruption.

Throughout this effort, civil society has been an active advocate. For the creation of the new system of alerters, civil society organizations such as Article 19, Poder, R3D and Fundar worked together with the SFP to draft a general bill to nationally and comprehensively regulate the definition, rights and scope of alerters, who, in addition to acts of corruption, can report human rights violations, environmental offenses and acts of gender violence, as well as a protection system against retaliation and, in general, a comprehensive alert system that recognizes its scope as including freedom of expression, the right to information, citizen participation, the right to truth, and cross-institution coordination in the attention and processing of the aforementioned alerts. To date, this proposed bill—which is not public—has been paralyzed within the SFP.

Current situation of the “alerters”

The future of the new platform is still not encouraging, despite the fact that official numbers show its use. Over the course of its first three months, the platform received 2,488 alerts, although within a year after that last date—that is, from September 2020 to September 2021— it received 874 alerts, of which only 47 were investigated. This may be due to the fact that in June 2020 the behaviors typified as administrative offenses which can be reported through the alerter platform were considerably reduced, another defect of which this system is accused.

In other words, while at the beginning of the platform’s operations on July 24, 2019 the alerter was allowed to submit reports related to alleged serious acts of corruption—bribery, embezzlement, diversion of resources, improper use of information, abuse of authority, conflict of interest, improper contracting, illicit enrichment, simulation of legal acts, influence peddling, cover-ups, contempt, nepotism, obstruction of justice, false accounts, as well as human rights violations, harassment and sexual harassment—as of June 2020, alerters can only inform the Administration of acts related to bribery, embezzlement and the diversion of public resources. Thus, in this restricted code of conduct, of the forty-seven alerts that were investigated, as stated in the previous paragraph, sixteen were about diversion of public resources, sixteen about bribery, nine about abuse of authority and six about embezzlement.

For its part, in response to a request for information made expressly for the writing of this article, the SFP indicated that in the period from January 1, 2019 to February 28, 2022, 3,545 alerts were received through the platform of whistleblowers – 856 for bribery, 110 for embezzlement and 844 for diversion of public resources. To analyze the scope of the alerter platform versus SIDEC, the same authority has reported that in the aforementioned period, 222,174 complaints were received through SIDEC.

Regarding the protection of alerters, in the first three months of the system’s operation, two requests for protection measures were received, while by 2021, only thirteen protection measures had been implemented. From January 2021 to February 2022, protection measures have been implemented in only four cases – according to SFP’s response to the aforementioned request for information.

Although it is positive that a protection protocol for alerters has been issued which defines official actions and methods of action by the authorities, it is essential that before starting the alert process, the person reporting knows precisely that he or she has the right to request measures, what they are, and that you can ask for them in your first contact with SFP, who is also the authority that assesses the risk, investigates and implements the protection measures. This information is not yet available or is not possible on the electronic alerting platform.

Areas of opportunity towards the consolidation of the “alerter”

The efforts of the public administration to coin the concept of “alerters” and regulate a specific channel for their alerts and specific protection measures are the first steps towards the consolidation of a new reporting system that reconfigures the context and understanding of whistleblowers or alerters in Mexico.

To achieve this, in addition to clarifying the differences between one concept and the other—relevant so that the person who intends to report or alert may assess and chooses the protections or procedural rights to which they will be subject—and to observe international standards in this matter, the State must take into account the challenges that remain in protection mechanisms for human rights defenders and journalists.

In addition, the development of a specific legal framework to legally establish the rights of whistleblowers and alerters—which is therefore not reduced to internal guidelines of a Secretary of State—must include institutional commitments to combat corruption, in particular legal protection and accompaniment. This is extremely important in the fight against corruption in Mexico.

In addition, although it will not solve all problems, a General Law on Alerters and Whistleblowers is necessary for the consolidation and visibility of the concept of “alerters”, as well as to achieve the enforceability of protection measures. This legislation should be the result of active collaboration with civil society organizations, the private sector, and citizen groups that have experienced the difficulties of being a whistleblower in Mexico.

 

 

Thanks to Kate Parsons for translating this blog from the Spanish orginal.