Hasegawa's Introductory Statement

Introductory Statement by Mr. Sukehiro Hasegawa Special Representative of the Secretary-General for Timor-Leste 29 August 2005

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Let me now turn to the third component, support to democratic governance and human rights through the provision of ten human rights officers. As a key element of UNOTIL’s mandate, we have assigned six human rights officers to respective national State institutions, namely the Office of the Prime Minister, Ministry of Foreign Affairs, Ministry of Interior and Defence, Ministry of Education, the Office of the Provedor, and the National Parliament, in order to strengthen their capacity to protect and promote human rights at all level. We have also assigned five national human rights officers to State institutions to play an increasingly important role as part of the transition to a sustainable human rights development in Timor-Leste. I wish to stress that I personally follow the developments in this area closely and maintain a vigorous and constructive dialogue with key government and state actors to enhance our efforts.

I am delighted to report that the long-awaited Provedor for Human Rights and Justice has recently been sworn in by the National Parliament. This is a significant step toward enhancement of transparency and accountability in public administration, not only in the human rights area, but also in the fight against corruption. UNOTIL will extend maximum support to strengthening the technical and functional capacity of the Office of the Provedor as well as the Offices of the Inspector General and Prosecutor-General. UNOTIL is also prepared to assist in the creation of legislation to establish the High Administrative, Tax and Audit Court, as envisaged in the Constitution, and other administrative courts of first instance.

Putting in Place Independent Oversight and Audit

1. Timor-Leste’s critical independent oversight mechanism, the Office of the Provedor de Direitos Humanos e Justica, opened its doors in March 2006. Following the promulgation of the organic law for the Office of the Provedor in April 2004, the Provedor was elected by Parliament in early 2005. The Provedor quickly appointed his two deputies, for human rights and anti-corruption respectively. Recruitment of the staff for the office is nearly complete, and the Provedor has already conducted an education campaign in the districts and in Dili. Per Article 27 of Timor-Leste’s Constitution, the Office of the Provedor will function as Ombudsman and Human Rights Commission. The mandate of the Provedor encompasses fighting corruption,1 promoting good governance and rule of law, protecting human rights, and redressing violations and injustice. The Provedor is appointed by and answers to Parliament and will undertake investigations in response to complaints from the public or requests from Government. The Provedor may make recommendations in a report to the entity affected. The recommendations of the Provedor are not backed by legal sanction but may include referral of a given matter to the Prosecutor General. The Provedor also has a mandate to mediate and conciliate between the complainant and the agency affected. The legislation stipulates that the Provedor shall keep the public informed so a major component of the Provedor’s activities will be public outreach and the promotion of human rights and good governance.

2. The establishment of the Office of the Provedor constitutes a clear and significant commitment to integrity and transparency in governance, but its effectiveness will depend on several factors. Many countries now have ombudsman’s offices, human rights commissions, or a combination of both. Experience has shown that the success of such entities depends on political support, adequate resources, public perceptions, functional competence, and how well they fit into the overall system of administrative regulation. 2 The fact that the Provedor is constitutionally mandated strengthens the office; however, the independence of the office would be further strengthened if its budget were derived directly from Parliament, or were otherwise protected, and the office had access to funds for day-to-day operations, at least through an imprest account. Staffing levels are a further constraint. The Provedor will require sufficient well-qualified staff to be able to deliver timely and thorough investigations, while also disseminating information. This will be particularly so if the Provedor assumes a large role in, for example, oversight of the armed services. Focusing on police oversight efforts under the auspices of the Provedor may be more efficient than the addition of a separate police oversight body but will require additional financial and human resources 1 The Provedor is planning to agree Memoranda of Understanding with, the Prosecutor General, OIG, Police and other relevant agencies with the aim of establishing close communication and coordination among them and avoid duplication of work. It will also be helpful to define corruption cases as distinct from cases of administrative malpractice and purely criminal cases not involving corruption. The OIG and Prosecutor General will need to notify the Provedor of all cases in their purview which appear to involve corruption so that the Provedor can determine whether to take them over.

2 World Bank, Using an Ombudsman to Oversee Public Officials, PREM Note No. 19, April 1999. for the Provedor. Budgeting and staffing levels may need to be increased once the level of demand for the services of the office becomes apparent.

3. The creation of independent oversight bodies to ensure professionalism and accountability on the part of the security forces remains a key governance challenge.

“Developing effective, professional, non-partisan defense and police forces…” is a stated goal of the NDP. Internal and external security understandably remains a continuing concern at the community level. Discipline and professionalism on the part of the armed services are critical to providing security, upholding the rule of law, maintaining good relations between army and police, and generating public confidence in the armed forces.

Any gains which may be made in establishing better relationships between the armed forces and communities will quickly be lost if there is a perception of impunity for those who commit disciplinary or criminal offences. Emerging evidence of unprofessional conduct highlights the need for independent oversight bodies for the security forces, as well as the development of adequate capacity for civilian management of the defense force.

4. While there has been commendable progress in the institutionalization of disciplinary systems for the police service, these could be further strengthened by clearer articulation of roles. The National Police of Timor-Leste (PNTL) falls within the Ministry of Interior. In keeping with the Organic Law of the PNTL, the Professional Ethics and Deontology Unit (PEDU) provides a complaints mechanism for the public and undertakes investigations. Minor breaches of discipline are handled within districts, while serious offenses are referred to PEDU. Where disciplinary review and appeal are concerned, there is some ambiguity, with overlap between the Inspectorate, established by the Organic Law for the Ministry of Interior, and the Superior Police Council, mandated by the Organic Law of the PNTL to be the final determining body on police complaints. Disciplinary review and oversight of the PNTL would be strengthened through clarification of the roles of these bodies, ideally when rules of procedure for both organs are developed. Protocols for interaction with the Office of the Provedor will also need to be developed. Clarification of the lines of operational authority between civilian officials in the Ministry and the PNTL command structure will reinforce the independence of the police force. The army, Falintil-Timor-Leste Defense Force, has developed an internal disciplinary code, but this has yet to be approved by the Ministry of Defense. Encouragingly, however, there have been inquiries into and hearings on some breaches of discipline. Meanwhile, the Office of the Provedor provides the only external oversight for the security forces. Consideration could be given to establishing an independent review commission for police complaints, as well as strengthening Parliament’s oversight role with respect to the security forces.

5. Ensuring independence of the audit of government accounts is crucial for enhancing governance. Timor-Leste’s Constitution allots the function of external audit to the High Administrative, Tax and Audit Court. As as interim measure, the Ministry of Planning and Finance contracts the task to an external private auditing company, after which audit reports and the management letter are submitted to the Executive, and then to Parliament. While contracting is unavoidable in the short and medium term, contracting by the Ministry has serious shortcomings. It creates conflict of interest as the audit is paid for by the entity which is being audited, and there is no independent check on the scope and rigor of the audit. Nor does it contribute to local institution building for external audit. Recognizing that the establishment of the High Administrative, Tax and Audit Court may take some years, arrangements are now being made to transfer the responsibility for the contract of the external auditor from the MoPF to the Court of Appeals (CoA). Until independent audit capacity is developed, the CoA will need support services to help manage the contract and interpret the audit results. A study to outline the necessary arrangements for the transfer and subsequent capacity building is planned for
2006. The CoA has incorporated the needs of the future High Administrative, Tax and
Audit Court into its long-term human resource planning.

Box 12: Suggested Actions

• Ensure adequate funding of the Office of the Provedor with budget approved directly by Parliament

• Publish and submit to Parliament the Annual Reports of the Provedor

• Establish a credible independent audit function under the Court of Appeals, pending the creation of the High Administrative, Tax, and Audit Court

• Establish mechanisms for coordination between Ministry of Interior, PNTL, and Office of the Provedor

• Create independent review commission for police complaints.