Pernicious Commissions

In The Stranger, Camus tells the story of a man alienated from the world who kills an Arab in Algiers simply because the sun was bothering his eyes. Meursault,the leading character, is condemned to the guillotine and in his cell begins to meditate on the absurdity of existence. Something like that happens to me with the commissions, councils, and other economic or political regulatory institutions that have come to be created in the country during recent years and, above all, on the insistence of making these into entities of “citizens”.

No society is born with all of its problems or contingencies sorted out. Rather, time comes to compel it to adjust laws, modify practices or construct forms of interacting that allow a society to achieve stability. In fact, during their process of development, all societies over time construct mechanisms, processes and institutions whose purpose is to revolve problems, confer continuity on the things that they prize, limit bureaucratic excesses, avoid abuses, in short, institutionalize.

The submission of kings to the Parliament in monarchic systems is a form of institutionalizing power, in the same manner as the adoption of rules for the continuity of the governmental expenditure when the legislative body fails to arrive at a budgetary agreement in time was a way of stabilizing the functioning of a government. What in England took seven hundred years and in the U.S. two hundred, in Mexico has necessitated construction in a very brief time lapse to a great extent because the authoritarian system obviated any need (or possibility) for institutionalizing the country.

The politico-legal framework that was constructed throughout the XX century in Mexico was one of absolute arbitrariness. The authorities possessed enormous latitude for deciding on any issue: the laws established cumbersome requirements, but always had bestowed upon the former vast bureaucratic powers to justify any decision, these usually responding to the political interest of the leader in office or to the pecuniary interest of the functionary him/herself. The political and economic transition that Mexico has experienced has obligated the marking off these faculties, but an enormous potential for abuse persists.

I understood this some years ago when I had the opportunity to observe the way the United States Securities and Exchange Commission (the SEC) works. The faculties of this entity are not only vast, but also it enjoys a brutal margin of discretional powers. However, in the process at which I was present, I detected one thing that appears simple but that is in radical contrast with our reality: this entity has discretionary attributions but is never arbitrary. The reason for the difference is that its resolutions (each a brick upon a brick) explain its decision, but also why this was arrived at and how it modified the existing precedents. In Mexico’s case the Federal Competition Commission (CFC), for example, issues its resolutions in a letter with no explanation, conferring no certainty to those that are regulated and opening a vast sea of possibilities for changing course the next time around, all without an explanation. That’s the difference between discretion and arbitrariness.

The objective to institutionalize can be seen in the creation and development of entities and institutions as diverse and dissimilar as the North American Free Trade Agreement (NAFTA) and the Human Rights Commissions, the economic regulatory commissions (in Competition, Communications, Hydrocarbons and Energy) the Federal Electoral Commission (the IFE), the Federal Institute of Access to Public Information (the IFAI) and the Institute for the Protection of Bank Savings (the IPAB). These institutions have come to join up with previously existing ones such as the National Banking and Securities Commission (the CNBV).

The construction of institutions and political agreements is a crucial component of the civilizing process of any society and constitutes a benchmark, a gauge, of the development process itself. No one, except for those preferring governmental arbitrariness, could object to this type of body and structures of regulation, supervision and surveillance.

Of course, the group of entities and processes with which I attempt to illustrate the phenomenon constitutes a cornucopia of dissimilar things, many of which have nothing to do with the nature or the concept of the others. For example, NAFTA is a commercial and investment arrangement; however, one of the primordial objectives in its conception was that of furnishing guarantees for investors on the thrust of economic policy and, in this sense, constitutes a mechanism thought for institutionalizing the economy. Human rights commissions were created to monitor the authorities, above all the judicial authorities, in order to avoid abuses in these underworlds. Regulatory commissions exist to oversee the functioning of the markets. Each of these instances has its instruments, processes, and ways of being. Some comprise in reality decentralized mechanisms of the government to act as the authority, while the purpose of others is to exercise moral suasion on diverse actors or authorities.

Despite the diversity of these entities and institutions, a call is frequently issued, by the society as well as by the politicians, to construct “citizen” institutions or to convert the existing institutions into “citizen” ones, presumably stocking their councils with persons emerging from the civil society and not from the government. I beg to differ. Although there are entities in which it is the citizens who should be the lead voices because their objective is that of exercising moral suasion (as is the case of the human rights commissions), the regulatory commissions, beginning with the economic and following with the electoral ones, should be entrusted to upright, professional public functionaries, experienced and with records that demonstrate competency, honesty and commitment to public duty. If one observes today’s panorama, the difference is very simple:  those who are career civil servants do not seek the public spotlight and solely devote themselves to their work. Those who are “citizens” in these functions only cover their backs and engage the media to slake their own conceit.

A modern society requires solid institutions and entities, many of these autonomous, but all administered and presided over by honorable functionaries, professionals in the area, whose sole interest would be the due functioning of the activity and the sector. Thus, these entities require very well structured checks and balances that oblige commissioners and/or board members to abide by the norms and comply with their function not on center stage but rather with results.

A fundamental challenge confronting the country is that of constructing an efficient system of checks and balances that consolidates all of these regulatory entities, but in such a way that it eliminates all vestiges of arbitrariness. This is a job for professionals, not for citizens without experience in matters of the State.