Advance of Natalia Volosin's Expected Book: How the Argentine Corruption Machine Works

The first conclusion of the historical configuration of the corruption machine in Argentina is that we are confronted with a structural and fundamental problem closely related to our saga of reverse development. There is not a single moment in history where corruption has functioned as an exclusively public or private problem. Political and economic power appear as inseparable elements of the same phenomenon. It is therefore absurd to maintain the prejudices that still prevail in our debates on this subject.

Although the scandalous decade of 1990 generated a critical phase that could have been used to carry out structural reforms, the operation of the corruption machine under the government of De la Rúa showed that the problems of political will are much more complex that they do not appear there. Think about how harder it would have been for Kirchner to run the machine if the Alliance government had improved some of the many institutional weaknesses that Argentina had been dragging on for decades and that were already quite obvious in 1999.

The historical badysis shows that to preserve itself, the penal system is clever enough to read the political scenariowhich of course implies ensuring impunity for their own corruption. If you want to know what will happen in an election, before reviewing the investigations, see what judges and prosecutors do to the causes of corruption. Criminal justice can be just as effective in protecting powerful public servants who have been in office for years, and in imputing, investigating or prosecuting as soon as they lose an election or significantly reducing their level of approval in society. Tolerance with the big players in the private sector is even greater, mainly because economic power is permanent. Governments need to know that without reforms that go beyond the constitution and selective removal of judges and prosecutors who annoy power, this will continue. Commodore Py has already done it twice in the past, after Menem and after the Kirchner. Let no one believe they can not do it anymore.

Another general lesson is that, as expected, elections are not used to control corruption. Either by the limits of collective actions – how to make sure that a vote counts among millions of people? – out of frustration, hypocrisy or simply because they give priority to interests and preferences that some consider incompatible with honesty, It does not appear that voters punish corruption.

The problem of electoral responsibility suggests that whoever has the will and sufficient resources – universities, NGOs, multilateral banks, business groups organizing infinite and unnecessary events of transparency, compliance and other plants – should invest them. not only in the complaints and proposals for criminal reforms, but by demonstrating comprehensibly the link between the hidden costs of corruption and other priority public issues for the electorate, such as drug trafficking, l insecurity, the economy or the quality of public health and education. Those who run the anti-corruption agenda in politics – the opposition, which governs who governs – could also help show the hidden costs that this entails – cash-flow losses, economic distortions and serious human rights violations – especially because the control agencies only deal with criminal prosecution.

Accountability also calls for serious reforms of the criminal justice system not to influence obedient judges and prosecutors, but to guarantee their independence, systematically control their behavior and punish their professional mistakes. In addition, political leaders who claim to engage in the fight against corruption must stop complaining about the lack of sanction on the part of the electorate and start working seriously at the very lengthy list of debts that, as I explained below, towards society decades ago When they notice the seniority of the list, they may no longer be surprised by the frustrated voters who "vote corrupt".

Beyond the electoral sanctions, the historical badysis shows that, at least since Menem, The work of prevention and detection that the control organs did not do was done by the civil society. Who detects and denounces corruption? Control bodies? The bicameral committees of Congress? No, journalism and the opposition do it. With regard to prevention, although this is one of OA's main missions, since its creation in 1999, it has done practically nothing in this regard. Sector studies, training and awareness programs have been conducted by NGOs such as the Civil Association for Equality and Justice (ACIJ), the Association for Civil Rights (CDA). , the Center for Research and Prevention of Economic Crime (CIPCE) and citizen power.

To give just a few examples, these organizations have promoted the promulgation of a law on access to information, have partnered with a media group to publish sworn statements of officials, leaked budget badysis, overseeing public procurement processes and taking legal action. ensure the transparency of the mediator appointment process, as well as the ongoing monitoring of election financing. They even did the work of the Judicial Council. In order to determine the causes of the delays and inefficiency of criminal cases, ACIJ and CIPCE have initiated legal actions seeking access to federal criminal court corruption records, which are confidential. under the Code of Criminal Procedure and to whom they are granted access to those who show a legitimate interest. Through this work, we had the first problems regarding the impunity of corruption in Argentina.

Could this be done institutionally? Yes Specialist Paul Lagunes did an experiment in 200 local governments in Peru. He sent letters to half of them to tell them that some public works under his control were controlled by a civil society organization with the support of the country's main anti-corruption agency – which was wrong .. The rate of work was the same in both groups, but the one who received the letter was 51.39% cheaper. Conclusion? The simple belief that citizen control has positive effects. Imagine if we really controlled! These mechanisms do not exist in Argentina; Although Kirchner introduced a participatory procedure for the development of administrative standards in 2003 – in the same decree regulating participation in the appointment of judges to the Court – it is not compulsory and is hardly ever used. .

Finally, the archeology of Argentine corruption shows that, beyond hyperpresidentialism, the structure of the private sector directly contributed to political instability and uninterrupted machine operation. Corruption was essential for business interest groups (armed forces, unions and powerful economic agents) to gain privileged access to government revenues. Efforts to weaken corporatism -Defense of competition, union democratization, transparency and control of private uses of public funds, etc.- they are therefore as important as the restrictions imposed on hyperpresidentialism. Recent reports from official organizations reveal that there are many sectors of the economy where companies occupy a dominant position: aluminum, steel, petrochemicals, mobile communications, oil, milk and transport. Beyond these areas, those with the capacity to decide on reforms should pay particular attention to privatized public services, which enjoy a legal monopoly or oligopoly, as well as to suppliers. and public subcontractors fueled by a highly concentrated and vulnerable market.

Is it possible to change the behavior of gulls in Argentina without significant constitutional reform? The answer is yes. Historical badysis reveals that, from a preventive point of view, Many institutional weaknesses explain our structural corruption. No anti-corruption policy will succeed without solving them.

The conclusion regarding institutional weaknesses is that thirty-six years after the democratic transition and twenty-five years after the last constitutional reform, the political clbad still has the following 20 fundamental debts to the Argentine society with regard to the control of corruption:

1. The executive does public works with a 1947 standard, public works concessions with a 1967 law and purchases of goods and services without any law. Argentina and Venezuela are the only countries in Latin America and the Caribbean to regulate their purchases of goods and services by decree. As we have seen, 50% of the most important corruption cases of the last thirty years are directly explained by the precarious nature of the purchasing system.

2. The Financial Management Act has been distorted to allow exceptions that prevent many entities that use public funds from properly controlling. The mismanagement of state-owned enterprises, trust funds and subsidies, among other black holes that explain many of the corruption cases we have seen, is a consequence of this weakness. The poor record of the SIGEN, established under this regime, is an essential element of the problem. The fact that the wife of the Minister of Planning Kirchner was the second in command of the organization and that the last last title is being prosecuted for bribery with the former vice president are facts that speak d & # 39; themselves.

3. The law on tax sharing that should have been approved in 1996 has never been promulgated, federal funds are therefore subject to enormous discretion that generates corruption and extortion of funds to the provinces.

4 The funds of AFI (ex SIDE) remain completely secret, although everyone knows that they are used for illegal acts involving serious acts of violence and corruption related to lawmakers, judges, prosecutors and journalists.

5 The chief of staff can extend and rebadign 7% of the national budget voted by the Congress without any other control or limitation (Super).

6. The AGN still operates under the Financial Administration Act of 1992 because Congress never approved the new law ordering the constitutional reform of 1994. This occurs despite the fact that the role of this body has been expanded by the reform and that the 1992 law is partially incompatible with it. In addition, the AGN verifies only past events and the congressional Bicameral Committee to which it presents its audits does nothing with them.

7 The OA still has no functional and budgetary autarky, its incumbent is still unilaterally appointed and dismissed by the president, and politicians close to the ruling party have always been appointed. In Creole, this is not a control body. An ideal model should focus the criminal investigation powers in a PIA with sufficient guarantees of independence – which it does not have – and turn the OA into an autonomous body, ideally led by a collegiate body, charged with supervise sworn affidavits of all powers. State, control conflicts of interest, measure and disseminate the hidden cost of corruption, and develop microsectoral risk

8 The National Commission for Public Ethics has never been created or replaced by a similar entity. The result is a marked dispersion of affidavit systems that prevents adequate control. The sworn affidavits of the Supreme Court justices, for example, are not yet public, with the exception of those of Horacio Rosatti. The reform that eliminated the commission also restricted access to relevant heritage information. In addition, the system as a whole is excessively formalistic: it tends to accumulate information unrelated to the economic reality of public servants – for example, real estate is expressed in fiscal value and not in market value.

9 The bicameral congressional committees concerned with anti-corruption activities are dolls, nominal entities that do not do real control work.

10 Since 2009, no mediator has been appointed, while in 2016, the Supreme Court had ordered Congress to respect its constitutional obligations. The agency is run by an employee who, for example, does not have the legal capacity to take legal action. The fact that Cambiemos and Peronism (together) have tried to appoint the mediator by avoiding public participation represents our entire direction. As I explain below, the ombudsman's office could play a central role in promoting structural reforms to fight corruption from a human rights perspective.

11. The theoretically independent agencies (Central Bank, ANSES, AFIP and public service entities) are not structurally or functionally isolated from the executive.

12 Election financing has never been well regulated. The 2009 reform prohibited private companies from financing election campaigns, but the only thing that has been achieved has been to conceal contributions through intermediaries (managers and employees of private companies).

13 Official advertising has never been regulated. It is distributed in a discretionary manner, abused during the elections and is not subject to any accountability.

14 Nepotism is not regulated by law but, as we have seen, by a very weak decree limited to the executive power.

15 The conflict of interest regime is incompatible with the most fundamental international practices.

16 There is no mandatory procedure for citizen participation (internal development of standards, internal elaboration of terms of reference, social witnesses, etc.).

17 Judges and prosecutors are not subject to any systematic monitoring mechanism. In 2016, the Judicial Council commissioned for the first time an audit report on corruption cases from 1996 to 2016. Is it still 20 years before it does another one? When will you publish it? Are you going to use the results to sanction or eliminate all accomplices of corruption or only those who "upset" the government in place?

18. Although the case law of the Supreme Court on UNDRIPs and delegated decrees is clear, all governments escape Congress and broaden their discretionary powers by dictating manifestly unconstitutional rules.

19. Beyond the reform of the antitrust law, Market sectors as important as the media – essential to democratic deliberation – have been allowed by almost all governments to expand their dominant positions.

20. mainly, trade unions remain undemocratic organizations run by rich and powerful leaders who enjoy enormous discretion in managing public and private funds.