Few decisions in our history will be as transcendent as the nomination of the new Prosecutor General. The appointment will be critical not only for the crucial role played by the person who will be responsible for administering justice and the fight against corruption, but for the enormous autonomy it will enjoy under the new law, to which is added the fact that the appointment will be for nine years and whoever holds it will be immovable. An error in the appointment and the country will not only lose another opportunity, but would be at the mercy of the personality defects that might characterize the appointee. Here, once again, Mexico’s enormous institutional weakness is revealed.
An appointment of this nature and caliber is complex and difficult in any country and circumstance, but it would be infinitely more complex in the absence of strong institutions that limit the excesses and fallibilities inherent in people. Madison said it better than anybody: “If men were angels, no government would be required … the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” When there are no mechanisms to achieve one or the other, the appointment becomes always risky.
In recent weeks and months, we have witnessed debates and elucidations about the transition of the old office of the Attorney General to that of the new Prosecutor General and, more recently, the removal of the head of electoral prosecutor because, at has happened in other circumstances, he became uncomfortable to the powers that be. In both cases, the discussion is the same: is the person suitable? Does she behave properly? Will the appointee fulfill his obligations? Will he be allowed to perform? The questions are relevant because of the importance of the position and the realities of power, but also due to the fact that, at the end of the day, those who have occupied those positions are not, as Madison would have it, angels.
Our first problem is not the person but the fact that we have to discuss the person instead of the institution, where ultimately lies the key. We face the dilemma of the person because we have weak institutions that adapt to the person instead of having strong institutions that fulfill their mandate while limiting the worst excesses of those who are responsible for leading them. The real question we should ask ourselves is why we have institutions that are so weak, malleable, and prone to such risks.
For decades Mexicans have been building autonomous institutions under the principle that distance from the executive resolves the deficits that the country faces in terms of justice, corruption and impunity. However, the notion that “autonomy” is synonymous with impartiality is absurd, just as that a public institution can be better run by “citizens” than by professional functionaries. These conceptions are perfectly explicable given our history and system of government, but the crucial thing is not the autonomy but the checks and balances, which must be applied in exactly the same way to the executive as to any independent agency.
Today we have a number of supposedly autonomous entities -such as COFECE (competition), IFETEL (telecoms), INE (elections)- which have become equally vitiated territories, prone to arbitrary decisions by their vast discretionary powers, which are neither accountable nor subject to the normal checks inherent to a democratic system. The point is not to criticize the institutions that have been created with good intentions, but to the peculiar way in which they have built spaces prone to the development of personal and group fiefdoms, whose actions and resolutions are not subject to effective mechanisms of judicial -or equivalent- review. Autonomy, poorly understood by the absence of counterweights, ends up being one more “de facto” power (poder fáctico), which is precisely the substance of the discussion regarding the appointments (and removal) of the prosecutors at this moment.
We are where we are: before the need to appoint the prosecutor and, by design, without institutional counterweights. This circumstance invites all kinds of proposals for the appointment of persons whose central characteristic is to have had no experience in judicial matters or the handling of large and complex bureaucracies precisely because it is assumed that any previous contact with these worlds implies corruption. The problem is that the lack of experience in these matters leads to many of the vices and risks that are observed in the so-called autonomous entities: personal fiefdoms, arbitrariness, excesses and, even more important, failure in the central mission.
Whoever is named must at least meet three criteria: first, personal probity; second, ability and experience in handling complex issues and unredeemed bureaucracies; and, third, seriousness: a practical person with a clear mind with respect to the objective that should be pursued, which is, first of all, constructing an institution that in turn ends up limiting the person. The last thing Mexico needs is a saint or a true believer.
So much power can lead to a system that institutionalizes vendettas. Nothing more perilous. An institutional drive, rather than the rush to get there, should guide these appointments.