Access to Information on Political Parties

Jaime Cárdenas Gracia

1. Introduction

The activities of organizations involved in political activities should necessarily be public. A system cannot be considered democratic if secrecy is the basis of authorities´ activities and, although the political parties are not state institutions,¹ they do fulfill basic functions recognized constitutionally in Article 41 of the Mexican Constitution. The political parties, however, are public interest entities. They receive considerable amounts of taxpayer resources via government funding, they are the only mechanism with which to access public office thus far recognized in the Constitution,² and they more than clearly play the role of a mechanism of articulation between the powers that be and society.

Some have sustained that the contemporary state is a state of political parties³ and their argument is not without reason. If this is the case, how is it possible that the actions, decisions and internal life of the parties remain hidden and that citizens do not have access to decisions that will end up affecting their lives? After all, a party does not only decide on candidacies and leaderships but also on public policies and legislative, administrative, judicial and electoral strategies. The top leadership of the parties makes decisions on the human rights of their members and establishes relations of power with regard to them. As everyone knows, the parties are not innocent organizations of citizens but are electoral machines that help in the formation and exercise of power. Without the presence of the parties, it is not possible to explain any contemporary political and constitutional system.

The previous reflections call into question the Federal Law on Transparency and Access to Public Government Information. This is a law that seeks to make public life transparent, but does not shed light on all the spaces and niches of power, and the domains of the parties are the domains of power by antonomasia. Secrecy, especially when it is related to the exercise of power, is incompatible with freedom of thought, of worship, with progress in the fields of science and freedom and democracy. As Kant pointed out in his essay The Perpetual Peace, "all action relating to the right of other men is unjust if its maxim is not consistent with publicity".⁴ Secrecy regarding public issues should be eliminated. The party bureaucracies use secrecy to increase their power. A democratic system should ensure that public issues are aired, debated and dealt with in public, and that private and personal matters that are not related to the public domain remain in the private sphere. Democracy needs disclosure to allow for citizen control over public affairs and power. This control is possible only if such public authorities act with the greatest degree of transparency.

It is clear that a new law on transparency and access to public government information is needed that would open up the spaces of power in Mexico. The law currently in effect should be viewed as a first step, albeit insufficient, toward the creation of a normative system of freedoms, of citizen access to information and of accountability. As will be explained further on in this essay, the norms prevailing in the field, where they exist, are regressive. The law currently in effect only deals with the political parties in one of its articles —Article 11— which has a sad history that demonstrates the desire for secrecy on the part of the political elite. In the preparation of some of the drafts of that law by executive branch advisors and officials, I was asked for an opinion, and I indicated that transparency on the part of the political parties was necessary, and that it should not only encompass the results of audits, verifications and resolutions, but the very process through which such decisions were adopted. I added that the annual reports and the election campaign reports presented by the parties to the electoral authorities should be made public at the moment in which they are presented and not until the process of revision on the part of the authorities is concluded. This recommendation was taken into account, but subsequently was modified. The parliamentary caucuses and the political parties were not willing to open up information from the moment in which their annual and campaign reports are presented. They felt that disclosure should only refer to information on the use of public resources, etcetera.

That incident and others that I experienced as an electoral advisor during the presentation of two of the most serious cases of corruption in Mexican political life in recent years —the PEMEX and Friends of Fox cases—⁵ indicate to me that one of the most important struggles that society will have to wage is that of attaining full transparency from the political parties. The electoral reform proposals currently before the Mexican Congress do not adequately tackle this point. They remain, in the best of cases, on the level of administrative and financial transparency, which are necessary, but clearly insufficient.

2. What the Norms Indicate

The key norms on this question are contained in Article 41 of the Mexican Constitution, in Article 11 of the Federal Law on Transparency and Access to Public Government Information and in Article 6 of the Federal Electoral Institute regulations on transparency and access to public information. Article 41 of the Mexican Constitution states that the political parties are public interest entities whose aim is to promote the population´s participation in democratic life, to contribute to forming national representative leadership and, as citizen organizations, to make possible citizens´ access to the exercise of the public power. According to that constitutional provision, the political parties receive government funding for the development of their activities and constitutional and legal objectives. The article in question also stipulates that the sessions of all collective leadership structures of electoral bodies should be public.

Article 11 of the Federal Law on Transparency and Access to Public Government Information indicates that the annual reports and campaign reports that the parties and political associations must present to the electoral authorities should be made public once the respective revision procedure has concluded, and that any citizen may ask the Federal Electoral Institute (IFE) for information concerning the use of the public resources received by the political parties and national political associations.

Article 6 of the Federal Electoral Institute regulations on transparency and access to public information indicates that the following items can be classified as reserved information: materials concerning complaint procedures filed in relation to the origin and application of the resources corresponding to government financing of the parties and political associations for which the respective audit procedure has not been concluded; the procedures for disclosing the infractions and application of administrative sanctions established by Title Five of the Fifth Book of the Federal Code on Institutions and Electoral Procedures until a ruling has been issued by the Council; the reports of the political parties and of the national political associations, as well as the supporting documentation for the preparation of the rulings presented to the Auditing Commission on Party and Political Associations Resources for which the respective review procedure has not concluded; and, the data or minutes of the commissions of the IFE General Council that are within the preview of the previously mentioned articles of the law. Independently of this, it could be assumed, although this would be contradicted by a recent resolution of the Electoral Tribunal,⁶ that the remainder of the information relative to the parties and national political associations should be public.

3. Criticism of the Status Quo

As can be seen in the applicable norms, even though the political parties are public interest entities that receive considerable government funding —from taxpayer resources— and although they undertake their activities in the public sphere in the pursuit of constitutional and legally protected public objectives, they are not required to provide information by the Federal Law on Transparency and Access to Public Government Information. The exception to this is contained in Article 11 of that law, which textually states the following:

The reports presented by political parties and national political associations to the Federal Electoral Institute, as well as the audits and verifications ordered by the Audit Commission of Public Resources of Political Parties and Associations, shall be made public at the end of the corresponding verification procedure. Any citizen may request information from the Federal Electoral Institute concerning the use of public resources received by the political parties and national political associations.

In the Federal Electoral Institute regulations regarding transparency and access to public government information, four of the six categories of reserved information contained in Article 6 refer to the political parties and national political associations. This means that the parties are protected by the law and the regulations of the Federal Electoral Institute, and that many of their political, administrative and financial accounting activities escape public scrutiny.

Over the past few years, an important debate has taken place within the Federal Electoral Institute on the need for greater transparency in the life of the national political parties. The cases of corruption known as Pemexgate, Friends of Fox and the so-called `video scandals` that occurred in connection with the Party of the Democratic Revolution (PRD) show the need to hold up to public scrutiny the activities of those political organizations.

The electoral authorities have been limited in their auditing powers due to a culture of legal secrecy. I can report that among the members of the previous General Council of the Federal Electoral Institute (19962003), critical discussions took place on the way of dealing with different secrecy issues, such as fiscal, banking, trusts, public accounts, the work of the Public Prosecutor´s Office, etc. From my perspective, the constitutional attributes of the Federal Electoral Institute to audit the political parties and national political associations were so clear and evident that the fiscal, banking or Public Prosecutor´s Office authorities were required to provide the required information so that the Federal Electoral Institute could exercise its authority.⁷ However, the different fiscal, banking and Public Prosecutor´s Office authorities took refuge in their respective laws to refuse such collaboration and information.

Of course there is a problem with the legal culture in the country. Given doubts as to whether the Federal Electoral Institute was procedurally empowered to file a constitutional lawsuit, most of the electoral advisors chose to insist on taking the road of legal reform. As we know, beyond the Electoral Tribunal´s jurisprudence in the Friends of Fox case, in the sense that banking, trust and fiscal secrecy could not be invoked against the Federal Electoral Institute in their auditing investigations, fiscal authorities and the National Banking and Securities Commission have maintained in other cases that this jurisprudence does not compel them to disclose information in that compliance is not obligatory for administrative authorities.

Given this reality, it seems clear that the legal electoral reform in this and other senses can no longer be postponed in order for the Federal Electoral Institute to be able to carry out credible, complete and serious investigations into accounts and companies related to political parties and political associations. The reform should not only encompass or extend to the secrets of banking, Public Prosecutor´s Office, fiscal and auditing authorities, but to any federal, state or municipal authority that has relevant information on the parties and political associations, as well as on individuals related to those political institutes, so that the auditing activities of the Federal Electoral Institute do not face any legal secrecy issues.

In addition to the obligation for authorities and individuals to collaborate with the electoral institute in terms of auditing activities, it is important that some of the country´s auditing authorities, both federal and local, assist the Federal Electoral Institute in conducting the audits. The obligation that authorities and individuals collaborate during the audit investigations is important. Up until now, the Audit Commission of the General Council of the Federal Electoral Institute has refused to adopt urgent measures in response to the refusals to collaborate on the part of individuals and authorities. By the same token, there has been no updating of articles 21 and 32 of the General Law on the System of Challenge Mechanisms for Electoral Questions, which are supplementary norms governing the activities of the Auditing Commission, in accordance with the stipulations of Article 12 of the Federal Electoral Institute regulations that establish the "applicable guidelines in compiling files and substantiating the procedure for attending to complaints on the origin and application of resources corresponding to the financing (provided to) parties and political associations", published in the Diario Oficial de la Federación —the Official Gazette— on February 10, 2000.

Furthermore, the Federal Electoral Institute has refused to resort to filing criminal liability charges, given that a refusal to collaborate could be considered a criminal offense. Article 178 of the Federal Penal Code stipulates in its first paragraph that:

Whoever, without legitimate cause, refuses to provide a service in the public interest to which he or she is required by law, or who disobeys a legitimate order from the authorities, will be sentenced to from fifteen to two hundred days of community service.

Meanwhile, Article 183 of the same Code indicates that `when the law authorizes the use of compulsory measures to implement authorities´ decisions, the offense of disobedience will only be considered to have been committed when all the means for compliance have been exhausted.

In the cases of Pemex and Friends of Fox, the means of compliance were not employed by the General Council´s Audit Commission, much less was an attempt made to file criminal liability charges against those who had ceased to collaborate with the electoral authorities.

For the authorities, in addition to the means of compliance and possibly updating the provisions on offenses contemplated in articles 178 and 183 of the Federal Penal Code, they could have used Article 264, Paragraph 3 of the Federal Code on Institutions and Electoral Procedures that establishes a process for assigning liability for authorities who do not collaborate by providing the information requested by the bodies of the Federal Electoral Institute.⁸ On few occasions has this course of action been tried and when it was attempted, it was totally unsuccessful.

Most serious thus far in terms of transparency and access to information from the political parties is the regulatory norm approved by the General Council of the Federal Electoral Institute. The legislators of all the parties are responsible for having approved the Federal Law on Transparency and Access to Public Government Information and the delegation of responsibilities that the legislation confers on the Federal Electoral Institute (Article 61), and other state divisions and agencies, to restrict public information. The decision of Congress with regard to the delegation of responsibilities is unconstitutional because it violates the principle of distribution of powers contained in the Constitution and the law. Any restriction on the right to information should be anticipated in the Mexican Constitution in light of the stipulations contained in Article 1 of the Magna Carta and, at least in a law as indicated in Articles 13 and 30 of the American Convention on Human Rights. Neither the Federal Electoral Institute nor any organ of the state can supplant the constitution or the legislature in this regard.

Since 1789, this legal principle has been a bedrock of democratic constitutional development. The Declaration of the Rights of Man and of the Citizen states in Article 4 that:

Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

A century and a half later, the Universal Declaration on Human Rights put it this way in its Article 29, second paragraph: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law". The American Convention on Human Rights, in alluding to freedom of expression and the right to information, stipulates in the previously mentioned Article 13, second paragraph that: "The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law". Article 30 of the same Convention stipulates that "the restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established". A reading of these precepts makes it clear that in the electoral field we are witnessing a formal violation of a fundamental right, since it is in a regulation and not in a law that illegitimate restrictions on a fundamental right are established.

In addition, the restrictions established in Article 6 of the Federal Electoral Institute regulations are excessive and run contrary to the underlying assumptions of the legislation, represented by the legitimacy of the ends that such restrictions seek to achieve. In terms of the legitimate objectives that justify the exceptions, the law should anticipate a complete list of these so that it can justify a decision not to release information. This list should only include the interests that represent legitimate grounds for refusing to release documents and it should be limited to questions such as the application of the law, privacy, national security, commercial confidentiality, etcetera. The exceptions should be restrictively established to avoid including material that does no harm to legitimate interests. They should apply to content and not to the document as a whole. To satisfy this norm, the exceptions, depending on the case, should be subject to a temporary limitation. For example, the justification for classifying information as confidential on the basis of national security may lose its validity after the specific threat to national security has ceased to exist.

Denial of access to information should muster the test of substantial damage. It is not enough that information simply is understood as corresponding to the realm of the objectives legitimately enumerated by the law. The government agency should also demonstrate that the disclosure of the information can cause substantial damage to that legitimate objective. In some cases, the release of such information can be beneficial and at the same time harmful for the objective. For example, the disclosure of corruption in the armed forces can appear at first to weaken national defense but, in fact, over time it will help to eliminate corruption and strengthen the armed forces. In these cases, in order for the refusal to disclose information to be legitimate, the net effect of the release of such data should be substantial harm to the objective. It should also be stressed that even if it can be demonstrated that the release of the information would cause substantial harm to a legitimate objective, the data should be disclosed if the benefits of their circulation would outweigh the harm. For example, certain types of information can be of a private nature, but at the same time reveal a high level of corruption within the government. In such cases, the harm to the legitimate objective should be weighed against the public interest of disclosing information. In cases in which the public interest is greater, the law should mandate disclosure of the information. The restrictions contained in the Federal Electoral Institute regulations are vague and ambiguous and are not justified, since the disclosure of information classified as reserved does not threaten to inflict substantial harm on the legitimate objectives of a democratic society. It cannot be proven that the harm to this objective is greater than the public interest in disclosing the information.

But beyond the unconstitutionality of the Federal Electoral Institute regulation concerning transparency and access to public information is the consideration that the secrecy enveloping audit procedures only serves as a mechanism for shady deals and pressure. The best guarantee of independence and impartiality that the members of the Audit Commission of the General Council of the Federal Electoral Institute can have is the full transparency of their functioning and the information that they have at their disposal.

In the case of the Friends of Fox, the obsession with restricting information was one of the most distinctive aspects of the affair, which on many occasions was legally absurd. This is a public issue, related to parties that are public interest entities in which questions were raised concerning the election of the country´s current president, who had possibly violated norms of public order, and where those who were involved in the case did so with the knowledge that they were entering the public arena and that they had left the private sphere. Despite the public dimensions of the affair, there was an insistence on the utmost secrecy within the Federal Electoral Institute, among other authorities, and in the case of those presumably involved, in dealing with the issue, its investigation and the procedure followed. Contrary to the open collaboration that it had with the Federal Electoral Institute in the Pemex case, which included turning over copies of its investigation before it was concluded to enable the Federal Electoral Institute to move ahead with its inquiry, in the case of the Friends of Fox, the Public Prosecutor´s Office opted for silence. The exception was a visit that it allowed, almost at the end of the investigation, so that some members of the Audit Commission could consult the inquiry that it was working on. The rest of the time, the Public Prosecutor´s Office even denied information to those who had denounced illicit activities or revealed information; rather strange behavior when for previous complaints and investigations, the Federal Attorney General´s Office had provided information to the Federal Electoral Institute on incidents and still unconcluded proceedings, as was the situation in the case of Q-CFRPAP 24/OO AM vs. PRI.

Many incidents have occurred during the audit procedures for parties and political associations that have tended to hinder the transparency of the proceedings. Citizens should be very wary of the parties and their political elites. The national political elite, government officials and leaders of the political parties will do everything possible to limit public information or information in the public interest. We should always keep in mind that one of the most appropriate mechanisms to audit the parties is transparency. I would venture to say, given my experience in this field, that the only thing that they care about is that information should not be disclosed, since the economic sanctions imposed on the parties, after all, are paid for with resources from public funding, and not out of the pocket of the leaders and candidates who violate norms on financing.

Recently —in May and June 2004— a number of legislative proposals have been circulating in the Chamber of Deputies. Some of them have made it through committee on the issue of the right to access information concerning the political parties. They propose that the parties´ administrative and financial information be made public; that is, data on the leaders´ salaries, procedures for contracting goods and services, levels of indebtedness, etcetera. However, the legislative bills do not propose access to party information on political decisions relating to the designation and/or appointment of leaders and candidates, nor do they stipulate that the deliberations among their leadership bodies be public. Information on advertising rates and the parties´ time spots in the electronic media is prohibited. The idea is to open up some legal secrets —banking and fiscal— but not on the level of the Public Prosecutor´s Office and others, that if not successfully addressed will prevent audit investigations. Audit procedures remain hidden, and warnings are issued that the disclosure of information will be sanctioned with criminal liability charges being leveled against electoral officials who participate in releasing such data. In short, these are reform proposals that, if approved, would be regressive; they establish some spaces for access to political party information but close off many others.

4. Two Resolutions of the Federal Electoral Tribunal

Two resolutions of the Federal Electoral Tribunal have represented an effort —albeit relative— in terms of access to political party information. The first is contained in case file SUP-JDC-041/2004 dated June 25, 2004. This was a lawsuit for the protection of citizen electoral political rights filed by Jorge Arturo Zárate with the legal consultancy of the `Freedom of Information-Mexico, Civic Association´. Zárate, a reporter, had requested information on the salaries of political party leaders from the Federal Electoral Institute, which had denied the request, arguing that it involved data and information that was not contained in the institution´s files. The Federal Electoral Tribunal, by a majority of votes, recognized Zárate´s right to access such information. To reach such a decision, it based its ruling on previous precedents established by the tribunal that allowed individual citizens and party members to access data held in public archives regarding the political parties. The main criteria advanced by the Federal Electoral Tribunal in that ruling were the following:

1. Any citizen can request information from the Federal Electoral Institute concerning the use of public resources received by the political parties and the national political associations based on the audit procedures.

2. The monthly salaries or income received by the chairman or national leaders of all the political parties, the monthly salaries of the members of their National Executive Committees or their national leadership commissions and the work-related benefits that each of the leaders receives should be public information.

3. The information should be public, since it allows government actions to be audited through the right to information, given that democracy should not simply be viewed as a mechanism to elect the individuals in charge of carrying out governmental tasks, but more importantly, as a system of accountability.

4. The political parties should be included in this system of accountability, given that they are public interest entities and, basically, political associations of citizens. Most of their resources come from public funding; that is, from the people. Therefore, it is not feasible to deprive or restrict citizens from exercising certain minimum or basic rights that are inherent to their subjective public fundamental right to have access to a certain type of data concerning the existing political parties, because, as was previously said, this information also allows for an informed, responsible and, therefore, free participation in political-electoral affairs. The national political parties cannot remain apart from this accountability in their capacity as public interest entities, and for this reason the Federal Electoral Institute was endowed with broad monitoring authority over the activities of such institutions.

5. All the mechanisms of participatory democracy would be totally vacuous and even dangerous if the State did not ensure an effective access to information that would allow each individual citizen to form an informed judgment concerning questions on which he or she is permanently being asked for his or her opinion.

6. The guarantee of access to information is the basis for the free and responsible exercise of the other fundamental rights. If a citizen does not receive opportune, broad, truthful, up-to-date and complete information on issues that he or she is interested in, he or she will not be able to exercise many rights enshrined in the Mexican Constitution, such as the right to free and democratic participation in society in general and the country´s life in particular.

7. In its ruling, the Federal Electoral Tribunal assumes as its own the principles of the right to access information raised by non-governmental organizations such as `Article 19´. As we know, these principles include those of maximum disclosure, obligatory publication, the limited scope of exceptions, the information being free of charge and access involving a minimum formality, ease of access, precedence of the disclosure of information and protection of citizens who denounce illicit conduct in government activity.

8. By the same token, the Federal Electoral Tribunal used the stipulations of Article 19 of the International Pact of Civil and Political Rights and Article 13 of the American Convention on Human Rights to support its decision.

9. The Federal Electoral Tribunal points out, as North American theoreticians —such as, Ely,⁹ for example—, have done, that for citizens to have basic information regarding the political parties undoubtedly represents a prerequisite for exercising freedom of association and membership in the parties. That is, freedom of information is a prerequisite for democracy.

10. In its conclusion, the Federal Electoral Tribunal argued that the plaintiff was correct in his allegation that, given that the political parties are public interest entities whose income and expenditures are known, monitored, audited, sanctioned and published in their final version by the Federal Electoral Institute (IFE), they cannot be excluded from revealing to the general public the information that is requested from them in relation to the origin and allocation of their resources. Although it is true that these political institutions are not explicitly mentioned in Article 3, Section XIV of the Federal Law on Transparency and Access to Public Government Information as being subject to its provisions, the fact is that the basic information on their organizational elements and on the use of their resources is held, as is clear in this concrete case, by the Federal Electoral Institute. Therefore, in any event, the responsible authority should furnish the working papers, in accordance with Article 19.4 of the Agreement of the General Council of the Federal Electoral Institute with which the regulations were approved that establish the guidelines, formats, instructions, account registries and accounting manuals applicable to the political parties in the registration of their income and expenditures and in the presentation of their reports, which are used to prepare the respective ruling. Therefore, in complying with the law on transparency, its regulations, and the principles that emanate from them, the IFE was able to attend to the petition of the plaintiff, since it is legally anticipated within its faculties to do so, especially when the data in question are not considered to contain either reserved or confidential information.

As can be seen, this ruling from the Federal Electoral Tribunal marked an important precedent in the right to access political-electoral information. Nevertheless, one cannot claim victory, because the right to access public information from the political parties is not a settled issue. The Tribunal could take a step backward, as it did in the ruling that will be explained below, or as a result of a restrictive electoral reform it could consolidate positions in favor of secrecy, or the court could even issue more limitative interpretations. An additional factor in this regard is that the framework for the right to access information in Mexico maintains significant blank spaces.

The second resolution of the Federal Electoral Tribunal, dated September 10, 2004, contained in case file SUP-JDC- 216/2004, based on the lawsuit for the protection of citizen political-electoral rights filed by the same journalist Arturo Zárate Vite,¹⁰ determined, among its main findings, the following:

1. Making public the reports of the parties and national political associations concerning their income and expenditures in ordinary periods or during election campaigns is considered to be an attribution of the Federal Electoral Institute. Such information includes the audits and verifications of the parties and political associations, among other types of data concerning the use of the public resources that the parties receive, as long as the information is not in the investigative stage or involved in a legal process.

2. Although the parties are not directly subject to the Federal Law on Transparency and Access to Public Government Information, this does not prevent an entity that is directly subject to this legislation, such as the Federal Electoral Institute, from assuming its responsibility, acting as an intermediary authority and requesting the publicly relevant information that is not in its files.

3. The information and documentation that has been part of an audit procedure involving the parties and national political associations can be made public. The parties and political associations are required to conserve that documentation for up to five years and the Federal Electoral Institute can request it, even though the parties and political associations might have lost their legal registration as public interest entities.

4. The fact that a definitive resolution of the electoral authorities has been questioned, does not confer a reserved character to the corresponding information.

5. In line with Bobbio¹¹ it is said that the disclosure of government decisions and actions represents the true and specific moment of change in the transformation of the modern state from an absolute state to a state based on the rule of law.

6. The person who holds the legal rights to electoral-related information is the citizen who delegated the handling of public affairs to representatives.

7. The previously described ruling —SUP-JDC-041/2004— incorporates the principles of the right to access information.¹²

8. Among the limitative elements of the ruling, it is stipulated there is certain information about the parties and their members that should necessarily be restricted, since its public disclosure could affect the rights of third parties. This could be the case with the personal data of the parties´ members or affiliates.

9. The right of citizens to access electoral-related public information should be brought into line with the right of the national political parties or the civic organizations that follow them to not be unduly disturbed in their person, properties or possessions.

10. There is no unrestricted right of citizens to access all the information concerning the political parties, according to the Electoral Tribunal. They only have the right to access information related to the use of public resources and with regard to the audit procedures, and with the limitations established by the laws and regulations.

11. The obligation to provide information does not correspond to the parties, at least not directly, but to the electoral authorities.

12. In terms of auditing, among the information from the parties and political associations that can be made public, there is, by way of example, the data held by the Audit Commission of the Federal Electoral Institute that it has requested from the parties regarding their income and expenditures, information on the income obtained from contributions that the parties have received, data on financial contributors, the amounts of the collections, donations in kind, monies corresponding to efforts at self-financing, reports on income, its use and application, the explanations or rectifications that the parties provided to the electoral authorities for effects of the audit or verification procedures, the registries of income and expenditures and the supporting documentation on how the resources were allocated, the result of the audits and verifications and the corresponding working papers, etcetera.

In both rulings, electoral court judge Eloy Fuentes Cerda issued a dissenting opinion, not on the basis of the underlying issues involved, but on procedural grounds. In his opinion, legal proceedings in relation to the protection of political-electoral rights are not the way to fight the issue. In any event —Fuentes argues— a writ of injunction should be filed and the parties could chose to appeal in accordance with the terms of the General Law on the System of Challenge Mechanisms for Electoral Questions.

5. An Injunction Ruling

In a previous work I explained the history behind the injunction that I filed against decisions of the General Council of the Federal Electoral Institute and other electoral authorities and of the legislative and the executive branches of government, for the unconstitutional approval of the Federal Electoral Institute regulations regarding transparency and access to public government information, published in the Diario Oficial on June 9, 2003.¹³ On September 27, 2004, the Second Administrative-Law Collegiate Court of the first circuit resolved by a majority of votes in response to injunction motion 101/2004 to dismiss the action for constitutional relief based on the consideration that the decisions being challenged were not of a self-applicative nature and that decisions of concrete application were required. Specifically, the Injunction Tribunal requires the presence of the following suppositions to deal with the underlying issues:

a) That complaints be filed in relation to the origin and application of the resources derived from the financing provided to the parties and political associations in which the respective audit procedure has not been concluded; b) That motions be presented to obtain the data on the infractions and application of administrative sanctions established in Title Five of the Fifth Book of the Electoral Code; c) That the reports of the parties and the national political associations, as well as the documentation used in preparing the rulings be presented to the Commission to Audit the Resources of Parties and Political Associations in which the respective audit procedure has not been concluded; d) That the investigations and legal proceedings for criminal liability against public servants have begun; and e) That the information that can hinder the verification activities in compliance with the Federal Code on Institutions and Electoral Procedures be identified. Coupled with these provisions, it is necessary that it be demonstrated that the complainant, in his or her capacity as electoral advisor to the General Council of the Federal Electoral Institute, has requested information from the institution and that it was prevented from providing him or her with such data. At the same time, Article 47 requires, in order that the individual involved be affected, an act of administrative authority, for which the now appealed sanction is being applied...¹⁴

In other words, in order for the Injunction Tribunals to deliberate on cases involving the unconstitutionality of the regulations, it is necessary that the person filing the injunction receive a negative ruling prior to the initiation of the respective procedure. As can be seen, the federal judicial branch is not up to the task of defending the constitutionality of the norms and only says it is trying to do so until a major development might occur. Therefore, the dissenting judge, Carlos Amado, pointed out in his minority opinion that:

the very entering into effect of Article 6, paragraphs first and second of the Regulation, challenged through the constitutionally designated tribunal, is already affecting the way in which people can access information of the previously mentioned institution In this sense, as the appellant alleges, since entering into effect, the restrictions and limitations to the right to information have been updated and, therefore, this affects its legal scope, given that it is not necessary to file the corresponding request in order for the information to be denied, the ruling on which would evidently be in this sense. This is in abeyance of the stipulations of Article 6 of the previously referred to regulation. Then, with the mere fact that the regulation enters into effect, the information in question will be restricted or with limitations. It is clear that it is not necessary to wait for a concrete decision to be able to challenge it, since it is already known what type of information is not provided, because the above-mentioned Article 6 that is being challenged mandates such a decision. Based on these considerations, it can be concluded that, contrary to what was indicated by the district judge, such a disposition has a self-applicative character, given that since it entered into effect, it limits people from directly accessing information anticipated in Article 6, paragraphs first and second, of the Regulation¹⁵

The previous case shows the Mexican federal judiciary is getting increasingly entangled in grounds for inadmissibility in relation to the Injunction Law, which long ceased to be a mechanism for guaranteeing human rights in the country, if indeed it ever was one. The use of writs of injunction means that the courts forget what is really at stake and focus on form, which ends up being the main issue in a motion for constitutional relief. We will surely not advance very far in the full protection of the right to access information by this road, much less in relation to electoral and political party information.

6. Conclusions

The two resolutions of the Federal Electoral Tribunal are important for the right to access information on political parties because through the Federal Electoral Institute, information can be accessed that has been subject to audit procedures. However, major deficiencies persist in the field, be they due to the scope of the respective resolutions, the behavior of other federal level courts, or as a result of the regulations that the Federal Electoral Institute has unconstitutionally approved:

1. The two rulings issued by the Federal Electoral Tribunal still do not constitute jurisprudence in electoral questions. Three resolutions are required offering the same opinion.

2. The Federal Electoral Tribunal´s vision inverts the expansive character of the right and its multiplying effect to the rest of the regulation. The only information that is public is that which the law and the regulations so determine, while an approach consistent with human rights should mandate the contrary: namely, that everything should be public unless the law establishes a justified protective criteria in this regard.

3. The rulings of the Electoral Tribunal speak of limitations to the right to information when what are involved are the personal data of party members. It seems to me that this represents an exception to right to access information that is not always justified. In a democratic society, absolutely everything related to the political parties should be public, especially when these organizations receive considerable public funding and are the transmission belts for political representation. Disclosure of who the members of a party are is information that can help voters in their political definitions and, in passing, can also assist the electoral authorities in verifying, for example, whether the parties maintain the affiliation requirements to conserve their legal registration, to avoid problems of double or triple affiliation, etcetera. In these moments, in countries such as Argentina a debate is underway on whether data on party members can be public.

4. The Electoral Tribunal, especially in the resolution corresponding to case file SUP-JDC-216/2004, restricts public disclosure required from the political parties to accounting information certified by the electoral authorities. It is cause for concern that other information from the parties cannot be public and that the audit procedure is not transparent, when at this stage pressures are generated that can negatively affect the impartiality of the electoral authorities. In addition, we should note the relatively uncritical character of the Electoral Tribunal rulings on the Federal Electoral Institute´s regulations in the field, since even though according to the Supreme Court, the Electoral Tribunal does not have the authority to declare the norms unconstitutional, it can indicate the contradiction between Article 6 of the Regulation and articles 13 and 30 of the American Convention on Human Rights.

5. It should also be noted that the Electoral Tribunal does not offer an interpretation based on the Mexican Constitution to expand the number of entities subject to the provisions governing the right to access information, since even though the Law on Transparency and Access to Public Government Information does not explicitly encompass the political parties, and they are not government authorities, in light of the functions that are conferred upon them by Article 41 of the Mexican Constitution,¹⁶ there would be strong arguments for making the case that the parties should be the most open and transparent entities of the Mexican State.

6. The electoral reforms that are being prepared in the Mexican Congress will tend, if they are approved, to allow for the disclosure of important information on the parties in relation to, among others, administrative, fiscal, contracting, debt and financial management questions. A two-pronged criticism can be made of these initiatives. On the one hand, the principle is inverted: everything should be public, except for justified measures of a protective scope and, on the other, it is regrettable that other key decisions adopted by the parties and which have a greater impact on the country´s democratic life are not considered public. I am referring here to the procedures for designating candidates and leaders, the mechanisms for political deliberation within the parties, and so on.

7. It is significant that the audit procedures contained in the electoral reform proposals are protected with greater secrecy, establishing the removal of, and criminal liabilities against, public servants who disclose such information. This is in addition to proposing the creation of an Internal Comptroller´s Office that would be responsible for sanctioning the acts and omissions of the Federal Electoral Institute consultants and for regulating the appeals process involving the Federal Electoral Institute and the consultants, in the event of sanctions that are wrongly imposed.

8. Information on advertising rates and contracts that parties undertake with the electronic media, either directly or through the Federal Electoral Institute, as is contemplated in one of the legislative proposals for electoral reform, would also be defined as reserved. If this proposal goes through, citizens will not have access to a significant percentage of information on the parties, since most of the financing is earmarked for the purchase of advertising time on radio and television.

9. The Federal Electoral Tribunal in its second ruling did not develop two key points that it dealt with in the first resolution: 1) The role of the right to access information as a prerequisite for exercising democracy; and, 2) The importance of the right to information as a cornerstone in accountability, and accountability as an element in democracy. Clearly, the second ruling was more restrictive than the first resolution.

10. In terms of injunctive relief, and although this recourse should continue to be used to open up information, in the case of the political parties, it seems that this road is much more restrictive than that of the Federal Electoral Tribunal. However, a right that is not sought for and exercised is undermined.

Notes:
1 This is a long-standing discussion that goes back to the work of Pietro Virga. See Virga, Pietro, Il partito nell´ordinamiento giuridico, Milan, Giuffre Editore, 1948.
2 In this sense, among the cases resolved by the Federal Electoral Tribunal were the legal proceedings for the protection of the political-electoral rights of citizen Manuel´s Guillén Monzón is case SUP-JDC-037/2001, dated October 25, 2001, with a majority of five votes for the ruling. Majority opinion: José de Jesus Orozco Enríquez. Dissenting: Eloy Fuentes Cerda and Alfonsina Berta Navarrese Hidalgo. Superior Court, Resolution S3EL 081/2002.
3 García Pelayo, Manuel, El estado de partidos, Madrid, Alianza Editorial, 1986.
4 Kant, Immanuel, La paz perpetua, Madrid, Tecnos, 1985, pp. 61 and 62.
5; See Cárdenas, Jaime, Lecciones de los asuntos Pemex y Amigos de Fox, Mexico City, Instituto de Investigaciones Jurídicas, UNAM, 2004.
6 In resolution SUP-JDC-216/2004 dated September 10, 2004, the Electoral Tribunal inverted the expansive principle in favor of the right to information, ruling that only information so mandated by law is public, though the approach should be the opposite, that is, everything should be public unless the law establishes some exception that is fully justified.
7 See Cárdenas, Jaime, Lecciones de los asuntos Pemex y Amigos de Fox, op. cit. , footnote 5, pp. 151-156. There I explain the need for transparency, which can no longer be put off in the auditing procedures and the demand that the sessions of the Auditing Commission of the General Council of the Electoral Federal Institute be public.
8 This article indicates that the Federal Electoral Institute will take stock of the infractions committed by federal, state and municipal authorities when they do not provide in a timely fashion and in the form required the information that is requested by the bodies of the electoral authority. The Federal Electoral Institute will compile the information and furnish it to the highest body of the transgressing authority for the latter to proceed according to the terms of the law. The highest body of the transgressing authority will inform the Federal Electoral Institute of the measures that it has adopted
9 Ely, John, Democracy and Distrust. A Theory of Judicial Review, Cambridge, Massachusetts, Harvard University Press, 1980.
10 The information that Zárate requested was in relation to the monthly income of the members of the National Executive Committees and the chairmen and secretaries of the political parties that lost their legal registration as a result of not having obtained 2% of the national vote cast in the 2003 federal elections.
11 Bobbio, Norberto, El futuro de la democracia, Mexico City, Fondo de Cultura Económica, 1992, p. 80.
12 See supra, p. 68.
13 Cárdenas, Jaime, "Una batalla judicial por el derecho a la información", in Villanueva, Ernesto and Luna Pla, Issa (editors), Derecho de acceso a la información pública. Valoraciones iniciales, Mexico City, Instituto de Investiga- ciones Jurídicas, UNAM, 2004, pp. 30-54.
14 Injunction under appeal 101/2004, Second Collegiate Administrative-Law Court of the First Circuit, September 27, 2004, complainant: Jaime Cárdenas, pp. 37-38.
15 Injunction under appeal 101/2004, Second Collegiate Administrative-Law Court of the First Circuit, September 27, 2004, complainant: Jaime Cárdenas, pp. 56 and 57.
16 Article 41 of the Mexican Constitution stipulates that the aim of the "political parties is to promote the population´s participation in democratic life, to contribute to forming national representative leadership and, as citizen organizations, to make possible citizens´ access to the exercise of public power".