FOIA Notes / Human Rights

Mexico’s Transparency Reforms, Part II: The selection of new IFAI commissioners and access to information on migrant rights

This post is the second in a series of on Mexico’s reforms, and information relating to migrant rights. See previous post on Mexico’s Transparency Reforms.

Mexico’s Senate is now in the process of selecting the country’s new information commissioners who will be at the center of pivotal transparency and human rights decisions for years to come. The competition is intense, with 158 candidates vying for the seven top positions at the Federal Access to Information Institute (IFAI).

The Senate listened to 22 candidates make their cases on Monday, saw 12 more on Tuesday, and will hear 124 more throughout the week. The process ends on Sunday, April 6th. Each candidate is given five minutes to present their credentials, before responding to questions from the Senate for another 20 minutes. Interested citizens can also propose questions for the senators to present during the hearings. The process also involves an “accompanying group” composed of ten specialists in transparency and open governance from civil society proposed by the Colectivo por la Transparencia to contribute to the selection process. The Senate has until May 9 to make the final selection of the commissioners who will form the new IFAI.

The applicants include academics, transparency and open government practitioners, political figures, and civil servants. Among the more notable candidates is Cecilia Azuara Arai, a long-time transparency advocate and constitutional law specialist from the National Autonomous University of Mexico (UNAM) who is currently Secretary of Access to Information at IFAI. At IFAI she has most recently been responsible for implementing recent constitutional reforms strengthening the institution’s autonomy. The list also includes other candidates associated with UNAM, such as Dr. Ernesto Villanueva Villanueva, a former member of Grupo Oaxaca — the civil society coalition that originally proposed and advocated for the passage of the transparency law in 2001 (see El Universal profile of candidates).

IFAI’s secretary in charge of personal data protection, Alfonso Oñate Laborde, is also on the list of candidates. Oñate Laborde was the leader of the institutional revolutionary party (PRI) in 1995 and served on the Supreme Court. He is among a number of candidates who served as leaders in political parties and in high positions in the judicial branch. Civil society organizations have raised concern that such candidates, if appointed as commissioners, could jeopardize the independence of IFAI and their decision-making authority (see civil society monitoring of the selection process and the profile of the candidates by Article 19, Borde Político, and Fundar).

The San Fernando massacre and IFAI rulings on human rights cases

For migrant rights advocates, the stakes in the selection of the new IFAI commissioners are high. Among other things, the new panel is poised to play a crucial role in an access to information case relating to the 2010 San Fernando massacre. (See previous post on the San Fernando case.) The recent court ruling in Mexico relating to the San Fernando massacre, which ordered the IFAI commissioners to determine if the 2010 migrant killings constitute a grave violation of human rights or international humanitarian law, could be directly impacted by the selection process. If IFAI appeals the recent ruling, the final resolution will be in the hands of the IFAI new commissioners, who are scheduled to begin their work next month.

The outcome of the San Fernando case is central to efforts to gain access to information on abuses against migrants, and is pivotal to affirming the recognition of the right to information as a fundamental human right. Former IFAI commissioner Jaqueline Peschard recently weighed in on the case, emphasizing its importance in an op-ed published Monday. Peschard was one of the commissioners who dissented against the IFAI ruling to uphold the decision by Mexico’s Attorney General’s Office (PGR) to withhold the investigative files relating to the San Fernando killings (see previous post on September 2013 ruling). It was that decision that was then challenged in court by Ana Cristina Ruelas of Article 19, and overturned by a federal judge who ordered IFAI to again examine the San Fernando killings, and rule on the withholding of the case files by the PGR.

In her op-ed, Peschard calls the judge’s ruling exemplary in affirming the right to truth, noting that it emphasizes how the right to know has been increasingly recognized as a necessary right to pursue truth and justice in cases relating to grave human rights violations (see Peschard’s op-ed in El Universal).

Transparency proponents have emphasized the need for commissioners who are capable of implementing a regulatory framework that affirms the right to access to information and ensures maximum disclosure of government records with information on human rights violations. Others have highlighted deficiencies in some of the proposed candidates, such as Fernando Batista Jiménez, who, in his capacity with the National Human Rights Commission (CNDH), has not appeared inclined to sufficiently advocate for the defense of migrant rights as human rights.

When considering the recent court ruling in the San Fernando, it is instructive to examine past cases where IFAI has ordered federal agencies to disclose information with important human rights value. IFAI’s past commissioners have made rulings on several occasions in favor of petitioners seeking human rights information withheld by Mexican federal agencies. Article 14 of Mexico’s transparency law includes a clause that prohibits the withholding of documents with information on “grave violations” of human rights and asserts that “information may not be classified when the investigation of grave violations of fundamental rights or crimes against humanity is at stake” (see Mexico’s Transparency Law). This clause has been a model for other countries adopting legislation aimed at the right to the truth.

In one case where IFAI invoked the human rights clause, the National Security Archive sent a request in 2009 to the PGR for access to a public version of case file 109/A1/98/B, related to the 1998 massacre that occurred in El Charco, Guerrero, where 11 people were killed during a military operation. Citing Article 14 of the transparency law, IFAI ordered the Attorney General’s office (PGR) to release a public version of the case file in December 2009, giving them ten days to turn over the material (see IFAI Resolution 3804/09).

In several other cases, IFAI has ruled in favor of petitioners seeking records relating to the Special Prosecutor’s investigations into “dirty war” abuses carried out during the 1960s-80s. These abuses include the October 2, 1968, student killings by government security forces in the lead up to the Mexico City Olympic games (see IFAI Resolution 1311/10), along with cases of forced disappearance carried out in the highlands in the 1970s as a result of the military-waged counterinsurgency campaign. In March 2009 IFAI ordered the Attorney General’s office to release its investigative file relating to Rosendo Radilla Pacheco, a schoolteacher who was detained by the military and disappeared in 1974. In that case, IFAI determined the underlying events related to grave violations of fundamental rights and possibly crimes against humanity after an extensive review of all relevant materials publicly available on the events of Rosendo Radilla’s presumed forced disappearance (see IFAI Resolution 5110/08, page 31).

These cases demonstrate that IFAI has set a strong precedent in ruling against federal agencies that withhold archives with information relevant to human rights clarification and justice process. It remains to be seen whether IFAI will make the same decision in the San Fernando case and set a precedent that protects the human rights of migrants and ensures access to information on abuses of such rights.

For the latest on the IFAI selection process, follow @designaciones, #NuevoIFAI

Jesse Franzblau
@Jfranzblau

 

2 thoughts on “Mexico’s Transparency Reforms, Part II: The selection of new IFAI commissioners and access to information on migrant rights

  1. Pingback: On International Right to Know Day, a Call to Declassify Migrant Massacres in Mexico | Migration Declassified

  2. Pingback: En el Día Internacional del Derecho a Saber, una llamada a desclasificar masacres de migrantes en México | Migración Abierta

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