Our aim is to be consistently active in articulating the need for transparency and accountability on behalf of the people, to be consequent in the struggle to identify and combat corruption, and to coordinate and facilitate research and disseminate our findings.
LABEH is the only local NGO in Timor-Leste, that have focused on transparency, accountability and combating corruption as its primary objective, so our comment on the draft Act focused on “Enhancing Transparency and Accountability in the Management the commission.
As from the very first beginning of the public consultation of establishing the Anti-Corruption Commission our organization has followed its developments. In preparation of this submission, we conducted a public opinion pull through a national and regional consultation throughout the national territory and through our radio talk show and also through numerous publications on our weekly bulletin, our citizen’s strongly supported the government policy to establish the anti-corruption commission.
LABEH is encouraged by the government’s recognition that consultation with the civil society in establishing this Anti-Corruption Commission is essential. But we are concerned that the government may be missing an opportunity to address most of the important issues of the work of the commission and to promote transparency and accountability in this regard and to combat corruption in a systematic and effective way.
The draft law on Anti-Corruption Commission represents a significant step towards the introduction of a comprehensive framework governing an independent agency in lead of the state’s response to the damaging consequences of Corruption in all of its form. The draft law incorporates vast majority of the proposals from the civil society and also the United Nations, including, most importantly, the statutory concept and institutional competencies of the Anti-Corruption Commission (ACC). The proposed changes laid out below are aimed at furthering and improving certain substantive and drafting aspects of the law, as follows:
What measures shall be implemented to monitor the activities of the commission and to combat corruption and prevent misuse of public funds. As a first step, we suggest to the government that the “Anti-Corruption Commission should have an Oversight Committee” that would monitor the commission. Their powers will need to be clear and how it will be applied. And to whom will it be accountable will be the other questions that will necessarily require clear answers.
Confidentiality and Accountability
What is considered to be confidential should be clearly spelt out in the law so that our people would know what is confidential and thereby monitor the management of the Anti-Corruption Commission. Transparency and accountability are not limited to information on what has been done or is being done, but also includes what is intended to be done next, what is intended to be done in each phase of the commission’s development. More of that is demanded when dealing with the question of corruption which without doubt is an issue of a national interest.
The law needs to spell out that all the state organs, their agents and representatives of certain level should be publicly published or declare their asset to the commission. The law needs to establish a “One Stop Information Center” for ordinary citizens to report and to get information on the commission’s activities.
Composition of the Commission
The commissioner is appointed by the President of the Republic through a proposal by three quarters of the Members of the Parliament for a term of four years, renewable once. LABEH strongly disagree with this; due to the Provedor was not selected by this means, a majority vote in the parliament should be the norm applied for the selection of the commissioners. The law needs to spell out how many deputy commissioners are needed to work in the commission to avoid the commission being structured in a partisan order.
Section 2.3 (c), add the word “funds” after” Commissions” in order to clarify the competency of ACC in respect of governmental funds that may be duly established;
Section 4.1; add new subsections that reflect certain important responsibilities usually exercised by Anti-Corruption agencies, as follows:
Develop and propose to the National Parliament (parliament), National Anti-Corruption Action Plan and/or Strategy which sets out specific goals and indicators and established independent monitoring mechanisms;
Advise the parliament and the government on the measure to be taken for affective applications of the recognized international anti-corruption instruments in Timor Leste, including the United Nations Convention against Corruption;
Collect, collate and maintain, for the purposes of monitoring, records of income and asset declarations of senior government officials as may be determined or required by law;
Section 4.2, revise the description terms of corruption crimes in line with the terminology used in the United Nations Convention Against Corruption; and, for the purposes of precision, add the words, “notably in the criminal Code” at the end of the section;
Section 9.1, revise to read as follows: “the Commissioner shall be immune from legal process for any actions performed or words spoken in the exercise of his or her formal duties.”
Section 13, add the words ”based upon an open and transparent selection process” after “appointed”, as a framework provision to ensure that the selection of deputy Commissioners is not carried out in a single-handed manner;
Section 15, replace the words “ staff members” by “ civil servants”, which would be instrumental vis-á-vis the clarity of ACC employees’ status and all the selection/employment/labor relations aspects related thereto;
Section 18.2, should be deleted, or revised and re-incorporated under section 19, as the ACC’s responsibility for searches, raids and apprehensions should be exercised in conformity with the criminal procedure law (see chapeau of section 19.1) with no encroachment whatsoever on the legitimate powers of public prosecution;
Section 19.1(g), replace the phrase” regardless of the bank secrecy regime set by law”, which is overly neglectful towards a sect oral law, by “and the bank secrecy regime set by law shall not be used to constrain the implementation of such instructions;
Section 23.2, replace the word “ substitute” by” his/her designated representative”, as the former could be understood to mean any official who substitutes the commissioner spontaneously regardless of whether the authorization to represent him/her has been granted;
Section 28.3, a concept of prioritizing corruption cases (albeit worded as” the maximum priority”, i.e., not absolute priority) over other criminal offences, even the latter’s gravity notwithstanding, appears to be controversial and needs to be revisited;
Section 32.1, add the words “and taking into account the applicable legislation on the protection of witnesses, victims and reporting persons,” after “subject to the secrecy of judicial cases”;
Section 33.1, clarify whether the ACC would be financed through a budgetary grant or budgetary appropriation; as well as if there is a need for approval by the parliament of the resources dedicated to the ACC from the legitimate sources external to the budget, such as designated donor grants.
Since we don’t know what the final form of the Anti-Corruption Commission law will be. We recommend once more that a core condition of transparency and accountability be in-pregnant in the law.
We call for more public debates from the National Parliament for wider consultations of our people to dialogue on this important issue that will affect not only this generation but also the generations to come. This issue is of a national interest, should indeed become a national debate.
Thanks and Best regards,
Dr. Christopher Henry Samson
Executive Director LABEH