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Poverty,
inequity and inequality in access to services
In 2006 a total of 58,302,000 people held benefit rights, 47,536,000 through IMSS and 10,766,000 through ISSSTE (INEGI, 2006). According to the National Occupation and Employment Survey 2006, just over a third (35.7%) of the employed economically active population had access to health institutions, while the other 64.3% were without coverage. Of those who did have access, IMSS covered 27.3%, ISSSTE 5.2%, state ISSSTE 1.3%, PEMEX together with the Navy and National Defence Department 0.7%, and others 1.2% (IMSS, 2007, p. 6-7). To provide coverage for the 57.8% of the total population who are not insured by any social security institution (non-salaried workers, the self-employed and unemployed), People’s Health Insurance[6] was created six years ago and by the second half of 2006 had 15,672,374 affiliates (IMSS, 2007, p. 7). However, the 2006 Alternative Report’s chapter on the right to health care[7] condemns it as an instrument that institutionalizes a regression in the right to health care, violates constitutional principles of free and universal health care and follows the trend towards the progressive minimization and commercialization of services provided for the general public. Regressive pension reform versus international recommendations The 1999 Alternative Report alerted the UN Economic, Social and Cultural Rights Committee to the legal reforms of 1992 and 1997 that led to the replacement of the solidarity pension system by a system of individual contribution under the administration of finance institutions that charge a commission for account management and earn interest from the investment of pension funds in the stock market. The Committee expressed its concern to the Mexican government about social security system privatization “which could result in those who cannot make contributions to a private pension account being deprived of benefits…” (ECOSOC, 1999, E/C.12/1/Add.41, para. 24). The 2006 Alternative Report also condemned the performance of the Pension Fund Administrators (AFORES) and the precarious situation of IMSS and ISSSTE.[8] In response the Committee recommended a number of measures to the government, such as “a thorough evaluation of the modifications to the current pension system involved in the new law governing the Public Employees Social Security and Services Institute, as well as future modifications to other social security systems, in order to guarantee that such modifications do not generate employment insecurity for future pensioners or reduce the value of future pensions thus endangering an appropriate standard of living” (ECOSOC, 2006, E/C.12/MEX/CO/4, para. 35). The ILO Committee of Experts on the Application of Conventions and Recommendations has recently issued an individual observation for Mexico in relation to Convention 102 on social security,[9] in which it requests from the government, among other things, the texts of the agreements with the private sector for the transfer of responsibility for services, in order to verify their compatibility with the Convention, copies of the inspection reports, and information from supervision bodies indicating the average percentage of commission paid to AFORES. It also notes that the minimum guaranteed pension for 2005 is equivalent to 30.82% of the wage of an ordinary adult labourer, which is considerably less than the minimum percentage prescribed by the Convention (40%), and that consequently the government is expected to adopt the necessary measures to raise the minimum guaranteed pension (CEACR, 2007, Doc. No. (ilolex) 062007/MEX102). The observation relates to the 1997 IMSS Law reform but it is foreseeable that the Committee will have to pronounce again on Mexico’s non-compliance with Convention 102 in connection with the new ISSSTE Law. A legal analysis[10] of the 28 March 2007 ISSSTE Law reform concludes that it is a regressive measure when compared with the previous legislation and that it contravenes both the Mexican Constitution and specific provisions of Convention 102 that the Mexican state has an obligation to comply with. Although the new law contemplates several types of insurance and benefits that could be said to fulfil obligations incumbent on Mexico, the truth is that they are regulated in a way that does not include the obligation to provide benefits “for the entire duration” of each contingency. Even worse, this law includes several specific articles that entitle ISSSTE to withhold benefits, either because the department in which an individual is working has not fulfilled its obligation to remit contributions or because of a discretional management of financial resources that employs a merely financial logic and not the criterion of rights fulfilment (provisions in articles 15, 25, 196 and 198 of the new Law imply a complete lack of security for workers). Furthermore, this law is based on an individual contribution system administered by private institutions, in contravention of the obligation that the social security system be collectively financed, as prescribed by ILO Convention 102. Hundreds of thousands of public employees have politically mobilized and taken legal action against this reform. Among the legal actions instigated are the following: • Writs of injunction: According to information from the Supreme Court, between May and July 2007 more than 160,000 legal actions were presented, of which 107,000 were admitted, and it is expected that the Federal Judiciary will protect workers affected and potentially affected by the reform. • Claims by trade union organizations presented to the ILO Administrative Council based on violations of Convention 102: 10 claims have been presented and are awaiting admission. • Complaints by trade union organizations presented to the ILO Freedom of Association Committee based on violations of Convention 98 on the right to organize and bargain collectively: 10 complaints have been presented, admitted and combined in case 2577.[11] • If this type of reform is implemented in the rest of the system (in state companies, for example), the Mexican state will continue to contravene its national and international obligations in respect of the right to social security, and people will be compelled to resort to resistance strategies and extraordinary national and international legal mechanisms. Challenges • Demographic change is not the only challenge and may well not be the principal one as the authorities claim. Although fertility and child mortality rates have decreased, while life expectancy has increased, effective measures to address inequality and poverty are still needed along with a review of the social security system administration that is facing problems such as: fragmentation, a lack of integral actuarial assessment, insufficient regulation of private stakeholders (especially financial institutions), tax evasion and a diminishing allocation of budget resources, while fines and surcharges are cancelled for big companies with debts due to non-remittance of employee/employer contributions to IMSS. • Cuts in the social security and health budget must be prevented to avoid further worsening of the financial crisis facing service institutions, an increased shortage of medicines and equipment and deterioration in the condition of infrastructure and the quality of services. • It is essential to re-conceptualize social security not only as a work-related benefit but also as a human right applicable to the entire population, in the spirit of ICESCR Article 9. • While the model continues to be an occupational one, social security can only be guaranteed to the population through policies of full and proper employment that, among other things, widen coverage and guarantee adequate pensions. References CEACR (Committee of Experts on the Application of Conventions and Recommendations) (2007). Individual Observation on C102 Convention on social security (minimum standards), 1952. Available from: <www.ilo.org/ilolex/spanish/newcountryframeS.htm>. CESOP (Centro de Estudios Sociales y de Opinión Pública) (2004). “La seguridad social en México Panorama reciente y costo fiscal, 2000-2005”. México: Cámara de Diputados, LIX Legislatura, Palacio Legislativo, 16 November. Available from: <www.diputados.gob.mx/cesop/doctos/Estudio%20Seguridad%20Social%20Final%202.pdf>. ECOSOC (UN Economic and Social Council) (1999). ESCR Committee final observations on Mexico, 1999. Available from: <www.ohchr.ch>. ECOSOC (2006). ESCR Committee final observations on Mexico, 2006. Available from: <www.ohchr.ch>. IMSS (Instituto Mexicano del Seguro Social) (2007). Informe al Ejecutivo Federal y al Congreso de la Unión sobre la situación financiera y los riesgos del Instituto Mexicano del Seguro Social, 2006-2007. Available from: <www.imss.gob.mx>. INEGI (Instituto Nacional de Estadística, Geografía e Informática) (2006). “Población afiliada en el IMSS y en el ISSSTE según tipo de derechohabiencia, 1991 a 2006.” Available from: <www.inegi.gob.mx/est/contenidos/espanol/rutinas/ept.asp?t=msoc03&c=1881>. INEGI (2007). “Resultados de la Encuesta Nacional de Ocupación y Empleo (ENOE).” Communication 093, 16 May 2007. Available from: <www.inegi.gob.mx>. PND (Plan Nacional de Desarrollo) (2007). Plan Nacional de Desarrollo 2007-2012. México: Presidencia de la República. Available from: <www.presidencia.gob.mx>. Notes: [1] Poverty reduction measures taken between 1996 and 2005 have merely re-established the same poverty levels that prevailed prior to the 1995 economic crisis. In 2005, approximately 18% of Mexicans were living in a condition of food poverty and 47% of the population in a condition of ‘patrimonial poverty’ (in which minimum needs for food, education and health can be met but with a per capita income that is not sufficient for the acquisition of minimum requirements in housing, clothing, footwear and transport for each member of the household) (PND, 2007, Central topic: Equality of opportunities, Subject: Overcoming poverty). [2] Mexico has 4,203 hospitals, 1,121 of which are public and 3,082 private. The public sector has an average of 0.74 beds per 1,000 inhabitants, which is less than the figure of 1 bed per 1,000 inhabitants recommended by the World Health Organization (WHO). Mexico has 1.85 doctors per 1,000 inhabitants, which is less than the recommended international average of 3 doctors per 1,000 inhabitants (PND, 2007, Central topic: Equality of opportunities, Subject: Health). [3] Article 123, Section A, sub-section XXIX for workers in general and section B, sub-section XI for state workers. [4] The universal or Beveridge welfare model incorporates citizens’ basic rights to welfare, is characterized by unrestricted access to social services and is financed by taxes. The occupational or Bismarck model corresponds to the distributive principle of social security in which monetary benefits, and in particular pensions, depend on contributions made. (CESOP, 2004, p. 7-8). [5] “Sin seguridad social la mitad de los niños, revela CONAPO”. El Sol de San Luis, 30 April 2007. Available from: <www.oem.com.mx/elsoldesanluis/notas/n259630.htm>. [6] See: <www.ssa-sin.gob.mx/SEGUROPOPULAR/Index.htm>. [7] The Report of Civil Society Organizations on the Situation of Economic, Social, Cultural and Environmental Rights in Mexico (1997-2006) is an alternative report to the 4th Periodic Report of the Mexican State on the Implementation of the ICESCR. Right to Health Care chapter, coordinated by COCOMI, Mexico, April 2006. Available at: <www.equipopueblo.org.mx> and <www.ohchr.org/english/bodies/cescr/docs/info-ngos/mexico-coalition_En.pdf>. [8] Ibid. Right to Social Security chapter, coordinated by Centro de Reflexión y Acción Laboral de Fomento Cultural y Educativo. [9] In 1961 Mexico ratified Convention 102, the following parts of which are obligatory: II (medical care), III (sickness benefit), V (old-age benefit), VI (employment injury benefit) and VIII-X (Maternity benefit, Invalidity benefit and Survivors’ benefit). [10] This analysis is based on the claim under article 24 of the ILO Constitution presented by several trade unions and coordinated by Rodrigo Olvera Briceño, Consultoría Especializada en Justiciabilidad de Derechos Económicos, Sociales y Culturales (CEJUSDEC). Mexico, D.F., 6 June 2007. [11] Further information available from: <www.ilo.org>. Areli Sandoval Terán is Coordinator of the Citizens’ Diplomacy Programme of DECA Equipo Pueblo, A.C., focal point for Social Watch in Mexico and member of Espacio DESC. Contact:
Rodrigo Olvera Briceño is Consultoría Especializada en Justiciabilidad de Derechos Económicos, Sociales y Culturales (CEJUDESC), independent lawyer member of Espacio DESC. Contact: |
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