Fighting corruption is one of the key essential actions needed to support good governance, poverty eradication and the creation of a sound and safe environment for economic development. There are significant, and sometimes huge, costs to all countries affected by corruption, which in its worse forms can jeopardize the rule of law, damage the ethical, moral, social and political fabric of a society, and have major economic consequences.
In the era of rapid growth of globalization and the call for open and transparent governance, many governments around the world have tried remarkably hard to stamp out corruption in its many shapes and forms. One straightforward approach is to establish an independent anti-corruption agency, or multiple coordinated agencies, tasked with tackling corruption through prevention, education, raising awareness, and investigation or prosecution. This mandate is described in the United Nations Convention Against Corruption (UNCAC), to which most countries are state parties.
In 2009, the Democratic Republic of Timor-Leste, under the leadership of then-prime minister Xanana Gusmão, displayed its serious intention to fight corruption by establishing (by Law No 8/2009) an Anti-Corruption Commission (Comissão Anti-Corrupção; CAC) as an independent state institution led by a commissioner. That action was in keeping with the democratic tenor of the nation’s constitution, and also reflected the spirit of UNCAC.
Corruption is rightly deemed an extraordinary crime, in that its consequences have the potential to undermine or even destroy the foundations of democracy and inclusive development, both of which are recognized in East Timor’s constitution as fundamentally important. An extraordinary approach is therefore required to tackle this malicious disease. The results of the fight against corruption have, however, been mixed, and there is still plenty of room for further action to ensure that the fight is maintained as a national and inclusive goal.
One measure that could strengthen the nation’s anti-corruption effort would be to improve the mechanism by which the CAC leadership is selected. The current process has proved to be vulnerable to various destructive political gridlocks, because both the government and Parliament may have to compromise to arrive at a political consensus on the candidates. If the Parliament will not agree to the candidates proposed by the government, the process becomes paralyzed, and the work of the CAC can be severely hampered by the resulting leadership vacuum.
This is the situation the CAC has in fact been in for the last three months since the end of the mandate of its previous leadership in June. According to the existing legal framework, 30 days before the end of that leadership mandate, the government was required to propose the election of a new CAC commissioner to the Parliament.
Unfortunately, however, the current legal framework has a fundamental weakness, in that it requires the commissioner to be appointed by an absolute majority of the members of Parliament, with at least three-quarters of the MPs present. Those requirements make it possible for discrete blocs in the Parliament to prevent an appointment from progressing, which is exactly what has happened.
Because the development of political consensus is a time-consuming process, and because strong differences between parties are likely to lead to greater delays, the Parliament never arrived at a political consensus in support of the government’s proposal, as no bloc within the Parliament was fully satisfied with it.
This whole situation has given the impression to the public that the politicians are not serious about fighting corruption and are unable to make a decision on their own.
A second flaw in the existing law is that while the commissioner may appoint up to the three deputy commissioners to assist him or her, experience in the past four years has shown that the deputy commissioners, unless delegated specific powers by the commissioner, can function as little more than administrative assistants undertaking administrative, financial or human-resource management tasks.
A third weakness of the current legal framework is the diffusion of responsibility among the government, Parliament and parties, which leads to a lack of accountability for outcomes. Much finger-pointing and playing of blame games has marked the ongoing recent drama in the Parliament. Those in support of the government’s proposal claim that they have performed the task required of them by presenting it. Those opposed claim not to be content with the names proposed by the government.
While the law may have intended that all the players would make, and be jointly responsible for, a decision, in fact events have shown that ultimately nobody can be forced to resolve the issue, or be held to be so responsible.
A fourth issue resulting from this legal framework relates to the eligibility requirements for the candidates, which restrict the field to people with a legal background and experience such as jurists, public prosecutors, lawyers and criminal investigators with more than five years of experience. This excludes other potential candidates who may have sound knowledge and established experience in fields such as anti-corruption, public policy, finance, public administration, and other related areas. Given the limited human resources in the Prosecutor’s Office, courts and Public Defender’s Office, it would make more sense to extend the eligibility beyond those with legal qualifications.
When the former commissioner, Aderito Tilman, was elected, the Prosecutor’s Office was reluctant to make him available to take up the position, as he was then head of the District Prosecutor’s Office for the Eastern Region. Some sought to argue at the time against seeking to strengthen an institution by weakening another institution.
New mechanism needed
In order to prevent political deadlock of the type seen recently, and to limit the influence of political interests that could undermine the independence of CAC, a different selection mechanism for the CAC leadership should be adopted, providing for an open and transparent process with emphasis on individual competence and integrity, independence, non-partisanship, accountability and impartiality. Such a change would require a strong political will to amend Law No 8/2009.
To ensure an open and transparent process, CAC leadership positions should be publicly advertised, with a reasonable time permitted for applications to be made. The National Parliament should appoint members of a designated non-partisan and independent ad hoc committee to be responsible for the whole process, from recruitment through to the swearing-in ceremony.
The members of the ad hoc committee could include representatives from the government, Parliament, civil-society organizations, religious groups, women’s organizations, judicial institutions, law-enforcement bodies and academia. Alternatively, Parliament could confer the role of the committee on a respected independent body such as the National Commission of Elections.
The committee, however constituted, should be established well before the mandate of a CAC commissioner terminates, so as to allow the recruitment process to be completed in time.
To qualify as a candidate, a person should be required to be a citizen of East Timor with proven personal qualities such as integrity and recognized moral standing in the community, and a high level of independence and impartiality. Candidates should also have established professional experience, a relevant academic background, and sound knowledge of anti-corruption issues.
The committee should consider all the candidates and select the best three candidates who fulfill the requirements for appointment; Parliament should then choose one of the three to be commissioner, with the other two being deputy commissioners. If the Parliament has not made its choice by the time the term of the incumbent expires, the power to choose the commissioner should be required instead to be exercised by the president of the republic.
The commissioner and deputy commissioners should serve terms of four years with the possibility of being reappointed to a second such term, but not to a third; and while serving, they should be prohibited from being involved in any other government activity.
The commissioner should manage the organization and personally lead the investigation function, while the deputy commissioners should provide leadership in the areas of corruption prevention, the raising of public awareness, institutional cooperation, and administration.
Such a leadership selection mechanism could help to prevent the political deadlock, unnecessary delays, and politicization of the process seen recently, because the candidates for the CAC leadership would be selected through an open, public recruitment process managed by an independent and inclusive committee that represents various actors in the country. It would eliminate the paralysis that has been shown to be possible when political compromise turns out to be elusive, and would avoid the creation of the negative impression that the country is not serious about tackling corruption.
Corruption is an urgent and extraordinary crime, the fight against which calls for equally urgent and extraordinary solutions.