Research study: The anti-corruption environment in Timor-Leste
Brief background of the political, economic and social environment of Timor-Leste
Timor-Leste
is located on the southernmost edge of the Indonesian Archipelago. After some
400 years of Portuguese colonial rule and 24 years of resistance against
Indonesian occupation, Timor-Leste gained independence in 1999. At the time of
independence, 80% of the infrastructure was laid waste. Given the dire lack of
institutions and capacity, the United Nations Transitional Authority in
Timor-Leste (UNTAET) administered the country, exercised legislative and
executive authority and supported capacity-building to usher in
self-government. Full authority was handed over to the first constitutional
government in 2002. Timor-Leste is a parliamentary democracy in which the
President is Head of State and the Prime Minister is Head of Government. The
President serves a five-year term and is directly elected; he or she appoints
the leader of the majority party in parliament as Prime Minister.
Timor-Leste’s
population is 1.21 million, with a more than 60% aged under 16. Portuguese
influence during centuries of colonial rule resulted in a substantial majority
of the population identifying themselves as Roman Catholic. Portuguese and Tetun
are the official languages, with English and Bahasa Indonesian as working
languages. [1]
After restoration
of independence on May 20, 2002, Timor-Leste continued to face many challenges
in all areas. The government sees its main focus as balancing the pace of
social and economic development while responding to the complex needs of its
population. Two of the most pressing priorities continue to be security reform
and economic development, but the government also recognizes that more needs to
be done in areas of social justice, welfare and service delivery most
particularly for rural populations and in combating corruption.
While
agriculture (e.g. coffee) has traditionally been the backbone of the economy,
oil and gas are now the major export earners. The country has been noted for
its sandalwood and teak production for centuries and for its marble resources.
The country’s GDP for 2012
was $1.3 billion, with GDP per capita for the same period: $9500.[2]
The anti-corruption legal framework
The issue of combating
and preventing corruption has been emphasized since the UNTAET administration
and is included in several legal codes:
o
Articles
292 to 299 of the Penal Code define
corruption; the definition was adopted by the Anti-Corruption Commission law;
o
Article
10.4 of the Civil Service Law covers
actions in the case of a civil servant suspected of committing corruption,
fraud, embezzlement or taking public properties or money;
o
The
national parliament ratified the United Nations Convention against Corruption
(UNCAC) on 10 December 2008 and subsequently approved the Law on the Anti-Corruption Commission on 29 June 2009.
o
Witness
Protection Decree Law
o
Criminal
Procedure Code
o
Money
Laundering Law
The anti-corruption institutional framework:
Ø Anti-Corruption
Agency
In 2000,
UNTAET established an agency of government to control and audit the misuse of
government administration and finances. The first government of Timor-Leste
created the Inspesaum Jerál (IGE) with those same responsibilities. Law No. 7,
2004, Article 23 PDHJ (Ombudsman of Human Right and Justice) with the mission
to: oversee good government; promote human rights and combat and prevent
corruption.
Following
enactment of the Law on the
Anti-Corruption Commission, (Law No. 8, 2009), (see Attachment) Parliament
elected the first Commissioner of the Anti-Corruption Commission (Comissão
Anti-Corrupção - CAC) in February 2010. By December 2010, CAC had recruited
staff to functional capacity. The responsibilities and functions of PDHJ
regarding anti-corruption were extended to CAC in 2010.
CAC is a
legal entity governed by public law; CAC has technical independence and
administrative and financial authority
·
Enforcement capability
To improve capacity of CAC human resources, there
are two ways: the first is external/abroad training and the second is internal training. The first includes
course study of Internal Auditing in Jakarta, Indonesia, Comparative
Study in Bhutan, Hong Kong, Bangkok, training about investigation of corruption’s
crime in Singapore, participation in workshops of International Women to fight
corruption in Jakarta and Australia. And
also to get the Post Graduate Certificate in Corruption Studies in Hong Kong is
considered as a part of improving CAC’s human resources capability.
And the second is: PETS and QSDS training which are
handled by UNDP Timor-Leste, Training
about “Capture author of crime” which is taught by the National
Police of Timor-Leste, attending combat
and prevention corruption training which
is handled by FOTI USAID and CASALS and associate. English and Portuguese
language courses which are taught by LELI and Portuguese Institution.
·
Independence
Article 3
of the Law on the Anti-Corruption
Commission established the CAC as “a legal person governed by public law,
given a legal personality with technical independence and administrative and
financial autonomy”.
Adequacy of resources
Article 29
of the Law on the Anti-Corruption
Commission (see Attachment) sets out CAC’s financial independence.
CAC
submits a coasted annual Action Plan to Parliament for approval. The plan is
initially evaluated by the Ministry of Finance and then considered by the Council
of Ministers. While Parliament usually gives approval to the cost Action Plan,
funding, when approved, is made available to CAC. Although CAC’s law guarantees
financial help to CAC however the current budget of CAC is still very
centralized by the Ministry of Finance, therefore sometimes it can
affect the daily activities of CAC with every little thing having to be lodged to Finance in order to get approval.
CAC’s
operations are limited by a lack of human resources. As a recently-established organization,
the available pool of potential recruits with relevant skills and experience is
limited, e.g., in technical areas including:
o
forensic
construction
o
education
o
information
technology
o
prevention
|
o
forensic
accounting
o
money
laundering
o
undercover
investigation
o
procurement
|
CAC
recognizes the need to work with similar international agencies to increase its
human resource capacity.
·
Statutory power
The powers
of the Commission are set out in Article 5 of the Law on the Anti-Corruption Commission, and cover the areas of
criminal prevention and criminal investigation.
·
Jurisdiction
CAC’s
jurisdiction covers:
o
all
members of government, including the President and the Prime Minister;
o
the
judiciary;
o
the
operations and staff of the public sector;
o
government-funded
projects in the private sector
o
All
citizens of Timor-Leste.
Ø Prosecution
authority
CAC
undertakes investigations at the request, and under the authorization (Article
48 of the Criminal Procedure Code) of
the Public Prosecutor, a body established by the Constitution of Timor-Leste
(Article 132; see Attachment). The final
reports of investigations are submitted to the Prosecutor. There are two ways of conducting an
investigation: the first is active investigation and the second is passive
investigation.
Limitations
on capability exist because only eight prosecutors in the whole of Timor-Leste
deal with corruption, as well as a range of other cases.
Ø Judiciary
and its effectiveness
Timor-Leste’s
judicial framework comprises:
o
the
District Court as the Court of First Instance; (There are 4 in Timor-Leste)
o
the
Court of Appeal
The
effectiveness of the judiciary is limited by the available of suitable human
resources for recruitment to the role. The current judiciary, for example, does
not have specific training regarding anti-corruption matters.
System framework
Ø Civil
Service system in preventing corruption
The Civil Service
Commission was established in 2009 by the Law
on Creation of the Civil Service Commission. A publication produced for
review by the United States Agency for International Development[3],
however, notes the lack of either inclusion or awareness of several important
anti-corruption elements which fit within the Civil Service system: Freedom of
information; Asset disclosure; Conflicts of interests; Code of ethics; Whistleblower
protection; Public participation.
Ø Public
procurement practices
Procurement
is involved in over 70 percent of all government expenditure; hence there is
considerable risk of misuse or an inability to properly account for a
substantial proportion of government expenditure. Decree Law No. 10, 2005
established a system of government procurement. To consolidate, simplify and
clarify the previous plethora of procurement decree laws, the Council of
Ministers passed the Procurement Decree
Law of 2011 which established the National Procurement Commission.
Ministers have
delegation to approve contracts entered into by their departments to of a value
of up to $1,000,000. Special conditions apply to projects worth above that amount
which must be considered by the National Procurement Commission which reports
direct to the Prime Minister.
Ø Civil
Society Organizations’ role
Given the
characteristics of the country and its creation, Timor-Leste hosts a high
number of local and international non-government organizations (NGOs). Generally,
NGOs have their own anti-corruption strategies and CAC endeavors to work in
partnership with the NGO systems.
Ø Media’s
role
A draft media law is
presently being prepared; journalists were consulted regarding its content.
The involvement of the
media in the prevention of corruption is important. While CAC involves the
media as a strategy to prevent corruption, it is not currently being used at
maximum potential.
Special features, successful reform and best practices
CAC has designed and
implemented a range of activities used on International Anti-Corruption Day each
year as a means of educating and uniting young people. These include:
o
an
essay competition for university students on the topic of how to combat and prevent
corruption;
o
a
competitive quiz for junior and senior high school students about
anti-corruption methods, including combating and preventing corruption;
o
A
football league competition.
CAC is
pleased with the effectiveness of these strategies as a way of supporting a
culture of anti-corruption in its younger generation of citizens.
ATTACHMENT
1.
CONSTITUTION OF THE
DEMOCRATIC REPUBLIC OF EAST TIMOR
CHAPTER II
PUBLIC PROSECUTION
Section 132
(Functions and Status)
1. Public Prosecutors have
the responsibility for representing the State, prosecuting, Ensuring the defense
of the underage, absentees and the disabled, defending the Democratic legality
and promoting the enforcement of the law.
2. Public Prosecutors
shall be a body of judicial officers, hierarchically graded, and shall be
accountable to the Prosecutor-General.
3. In performing their
duties, Public Prosecutors shall be subject to legality, objectivity and
impartiality criteria, and obedience toward directives and orders as established
by Law.
4. Public Prosecutors
shall be governed by their own statutes, and shall only be suspended, retired
or dismissed under the circumstances provided for in the law.
5. It is incumbent
upon the Office of the Prosecutor-General to appoint, assign, and transfer and
promote public prosecutors and exercise disciplinary actions.
2.
DECREE-LAW
No. 13/2005
OF
THE
CRIMINAL PROCEDURE CODE
CHAPTER IV
ON THE PUBLIC
PROSECUTION SERVICE
Article 48
Responsibilities of
the Public Prosecution Service
1.
The
Public Prosecution Service is the holder of the criminal action and it is incumbent
upon it to cooperate with the court in disclosing the truth and in applying the
rule of law by complying, in every procedural intervention, with strict
criteria of legality and objectivity.
2.
It
is specifically incumbent upon the Public Prosecution Service to:
(a) Receive claims, complaints
and reports and order the initiation of criminal proceedings, once the
requirements for legitimacy have been met;
(b) Conduct the enquiry and take over
the procedures it deems advisable to conduct directly in this phase;
(c) Request the intervention of
the judge in performing jurisdictional acts during the enquiry;
(d) Present the indictment and
sustain it in court;
(e) Lodge appeals;
(f) Promote the execution of
court decisions;
(g) Perform
such other acts the law considers to be under its competencies.
LAW ON THE ANTI-CORRUPTION
COMMISSION
LAW Nº. 8/2009, July 15
Article 3
Nature of the Commission
1. The Commission is a legal
person governed by public law, given a legal personality with technical
independence and administrative and financial autonomy.
2. The Commission is given
the status of an independent, specialized criminal police body and its
intervention is governed by criteria of strict legality and objectivity, in
accordance with the terms of the law.
3. In its capacity as
criminal police body, the Commission shall act under the responsibility of the
competent judicial authority under the terms of the law.
Article 5
Powers of the Commission
1. In terms of criminal
prevention the Commission has the power to:
a) Gather and analyze information on
the causes and the prevention of corruption;
b) Undertake awareness
raising actions aimed at limiting the practice of acts of corruption, by
motivating people to adopt precautions or to reduce those acts and situations
which render the occurrence of criminal conduct easier;
c) Advise any institution
or public authority on ways to prevent and fight against corrupt conduct.
2.
In terms of criminal investigation, the Commission has the
power to exercise the duties assigned under the terms of the law to the criminal
police bodies, notably,
a) To conduct the inquiry
or practice acts of inquiry delegated to it by the Public Prosecutor's Office;
b) To gather news of crimes;
c) To discover those
agents responsible for practicing criminal acts;
d) To investigate signs or
news of facts this may constitute a crime;
e) To proceed to the
identification and detention of people;
f) To make the necessary
notifications by itself or by resorting to another police authority;
g) To conduct
interrogations within the scope of the investigation and other investigative
measures necessary for the performance of their duties;
h) To conduct searches and
body searches;
i) To seize objects and
documents;
j) To stand on watch;
k) To intercept and record
conversations or telephone calls, with a court order;
l) To examine books,
documents, records, archives and other pertinent elements in the possession of
the entities which are under investigation, as well as other pending offences;
m) To draw up expert reports, take
measurements and gather samples for laboratory exams;
n) To seal off premises.
3. In terms of criminal
investigation, the Commission may also suggest to the public Prosecutor's
Office that precautionary measures be adopted under the terms of the applicable
penal procedural legislation, notably:
a) That an order be made
to freeze bank accounts when there are strong indications that they contain
funds resulting from crimes as set out in article 4;
b) That an order be made
that any assets in the possession, custody or control of a person are not to be
used;
4. In order to fulfill its
respective duties, the Commission shall give maximum priority to the
investigation of those cases of corruption of greater severity or complexity.
5. The special regimes set
out in Decrees-Law No. 4/2006 of 1st March and No. 2/2007 of 8th March shall be
applicable to the Commission.
6. Acts carried out by the
Commission without a court order from the competent judicial authorities, under
the terms set out in the law, shall be validated by the competent judicial
authority within a maximum time limit of 72 hours, under penalty of it being
rendered null and void.
7.
The validation shall be requested with urgency by the Public
Prosecutor's Office.
CHAPTER VI
BUDGET
Article 29 Budget
1. The Commission shall have
a yearly budget sufficient to cover its operational costs and adequate to
maintain its independence, impartiality and efficiency, as set out under the
terms of the law.
2. The Commission budget
shall be prepared, approved and managed in accordance with the law.
3. The Commission shall be
forbidden from receiving funds from other sources.
4. The Commission shall keep
accounting records and other records on its functions or activities.
5.
The financial statements shall be presented to the National
Parliament and audited by the High Court of Administration, Taxation and
Accounting or by independent external auditors.
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