interamerican convention against · pdf filethe interamerican convention against corruption in...
TRANSCRIPT
INTERAMERICAN CONVENTION AGAINST CORRUPTION
(CICC-OEA)
CIVIL SOCIETY FOLLOW UP COMMISSION FOR THE APPLICATION OF
THE INTERAMERICAN CONVENTION AGAINST CORRUPTION IN THE
DOMINICAN REPUBLIC
ANSWER TO THE CUESTIONNAIRE REGARDING DISPOSITIONS
SELECTED BY THE EXPERTS ON THE FOLLOW UP MECHANISM
COMMITTEE FOR THE IMPLEMENTATION OF THE INTERAMERICAN
CONVENTION AGAINST CORRUPTION
FIRST ROUND
Matter of answers:
DECLARATION OF INCOMES SYSTEM
Article III, Numeral 4
MECHANISMS FOR THE STIMULATION OF CIVIL SOCIETY’S AND NON
GOVERNMENTAL ORGANIZATIONS’ PARTICIPATION IN EFFORTS
DESTINED TO PREVENT CORRUPTION
Article III, Clause 11
Santo Domingo, Dominican Republic
August 2004
1
EXECUTIVE SUMMARY
This executive summary gathers the most important conclusions and recommendations of
the brief made by the Follow up Committee for the Implementation of the Interamerican
Convention against Corruption (CICC) Dominican Republic.
For the realization of the jobs that sustain the brief, two Commissions were created which
focused on two fundamental tasks. In the first one the contents of the CICC were made
public to the different sectors of the population, in the Capital City as well as in the
provinces; and in the second one, work was put into the making of the brief which
gathers a well thought analysis of the application, in the Dominican Republic of Article
III, clauses 4 and 11 of the Convention about preventive measures, specifically about the
“System for the declaration of passive and active incomes by people in public duties
assigned by the law and for the publication of such declarations when required”, as well
as those regarding “Mechanisms for the stimulation of civil society’s and non
governmental organizations participation in efforts destined to prevent corruption”,
respectively.
For the recollection of information, different sources such as visitations and consultation
of Web Pages of State Institutions, civil organizations, academic institutions and
international organisms were used, key people were interviewed, the existing laws
regarding the sworn declaration of assets were applied, the answer of the State to the
questionnaire sent by the experts on the follow up mechanism committee for the
implementation of the Interamerican convention against corruption was used, among
others.
When analyzing the System for the declaration of passive and active incomes, article III,
clause 4, we were able to confirm that even though legal and constitutional norms and
state organisms which prevent and sanction corruption exist in the Dominican Republic,
they have within them strong weaknesses.
2
The most important norm regarding the declaration of passive and active incomes of
public officials is Law NO. 82 of December 16, 1979. In the analysis, we were able to
verify that this law is insufficient as well as limitative due to the fact that it doesn’t
include the important officials in the governmental train. In this sense, the Chief of State
and the Chief of Police do not have this obligation.
Another weakness relates to the juridical reach that the sworn declaration of assets has,
since the substantiation that the Notary Public makes limits itself to certifying what the
public official “declared under his assets oath”, it doesn’t confirm if those assets belong
to the person or not, or on the contrary if such declaration is in fact real.
In the same sense, the law does not specify the economic and accountable aspects that
make it possible to determine the estimated value of the assets, or the specifications
regarding the amount of intangible actives and passives.
In this same context, according to the law, the declared assets are exempt of all taxes.
This condition can favor the laundering of actives or assets resulting from corruption or
the traffic of narcotics, or in some cases, it would allow any citizen that gets to occupy
duties in the Government amnesty from taxes not paid on the income obtained to acquire
said assets.
The National Treasures is empowered by the law to receive inventory from the public
officials, due to the fact that that he’s the one authorized to retain the salary of those who
have not made the sworn declaration in the established time. However, nowadays which
dependency should register and verify the declarations has been object of confusion,
because the entity linked to said process is the General Attorney’s Office, particularly the
Department for the Prevention of Corruption. Said practice presents some institutional
weaknesses since it is not sheltered by the law and due to the fact that this department has
rendered itself incapable of performing this task.
3
The punishments established for those who do not obey what is established in the law are
diverse. On one side, the retention of salary until they comply with their obligations, and
on the other hand an admonition to those who violate the present norm. In this case the
sanction will be applied by his hierarchical superior. Without a doubt, the punishment
does not fit the crime. There would be less violation to this law if the sanctions were
stricter.
The aspects regarding the access to information are of great importance for the correct
application of the law and the attainment of its purposes. This way, citizens can exert
social control over the conduct of the Government and its officials. In reality, the
declarations are not allowed to the public due to the fact that institutions assigned by the
law do not have the mechanisms to correctly verify the information contained within
them. With the purpose of making the standing sworn declaration of assets in the
Dominican Republic better and stronger, we are proposing to modify Law No. 82,
according to existing bills, which should include the following considerations:
Due to the fact that Law No. 82 does not include severe sanctions for those who infringe
it, the punishments should be significantly stronger like it says on the bill now in
Congress. The penalties imposed should be more drastic since the existing ones are not
threatening enough to avoid officials form breaking said Law. In this sense, it would be
convenient a tipification of punishments that contemplate temporary suspension to the
inhabilitation of the public official to assume public positions and his incarceration.
It is imperative to extend the scope of those forced to present this declaration, a the
same time design monitoring mechanisms for the evaluations of the Patrimony of public
officials with the purpose of detecting illicit conduct on time. One of the most effective
measures could be that the sworn declaration of assets be made by no only the public
official but by his wife and descendants and ascendants at least to the first degree.
It is convenient to unify the criterion regarding the public official in charge of follow
up to Law No. 82, since the Department for the Prevention of Corruption exists at
4
the present time, organism specialized in the prevention and investigation of
corruption, created by Decree and assigned to the General Attorney’s Office of the
Dominican Republic. Despite this, a bill to modify the Law exists with the purpose
of equipping that department with independence and autonomy in its actions,
conferring it the faculty to keep record of the sworn declarations. An important
goal in the preventive scope is the establishment of a economical and sociological
follow up system for public officials, particularly those forced by Law No. 82 to give
the Sworn Declaration of Assets.
In this sense, for the design and implementation of public politics, preventive as well as
educational, anti-corruption, we propose the creation of the National Office for the
Prevention and Investigation of Corruption as an independent organism with the purpose
of eradicating corruption and improve public administration. Similarly, we suggest to
regulate, with greater precision, the terms for the presentation of the Sworn Declaration
of Assets, as well as to specify the requirements contained within.
With the purpose of achieving a better application and observation of the Law on the
Sworn Declaration of Assets, the number of institutions in charge of verifying said
declarations should be increased to, aside from the National Treasurer, the Attorney
General and the Department for the Prevention of Corruption, make the General
Direction of Internal Revenue an entity which can verify the contents of the Declaration
of taxes. Similarly, when the Ombudsman is instituted and the follow up Commission for
the CICC can constitute monitoring instances for the correct application of the law that
orders the public officials to state the Sworn Declaration of Assets.
As a compliment to what was said above, we recommend that the declaration of
active and passive incomes is made within the frame of the sworn declaration of
taxes that is established in Law No. 11-92, Tributary Code of the Dominican
Republic and its modifications.
5
Also they should be realized according to the International Audit and Accounting Norms.
Said declarations should be properly accredited by the corresponding institution in the
Dominican Republic, or the values should be estimated by experts. This would be an
interesting point since these last can belong to a state organism that verifies said values.
There should be a mechanism that allows any citizen to access to public servant’s
Sworn Declaration of Assets. At the moment of the making of the brief there was a
Web Page for the Department for the Prevention of Corruption that contained
information on some of the declarations. In that order of ideas the application of
the Law on Free Access to Information, recently approved, should be promoted as a
cross-sectional axis. The direct relationship between free access to information and
the Sworn Declaration of Assets as mechanisms to constrict to a larger rendition of
account rendering on the part of Government officials, constitutes the best antidote
against administrative corruption. Every citizen must have knowledge of such
declarations in order to emit a judgment of the person whose behavior has come to
be doubtful and to act in function of social control.
Regarding the Article III, Claus 11 about the Mechanisms for the stimulation of
Civil Society’s and Non Governmental Organizations Participation in Efforts
Destined to Prevent Corruption, we were able to confirm that the juridical frame to
achieve this is weak, and the majority of mechanisms are established by the
President trough decrees.
Aside from the weakness in the norm, the identified participation mechanisms present the
following weaknesses: lack of strategist plan with short and long term goals, a lack of
systematic operation, the designation of its members by the President, the absence of
key Government officials in the meetings, little understanding of what everyone’s role is,
among others.
As a result, it is not possible to achieve efficiency and at the same time it makes it
difficult for the Civil Society to participate in the process for the prevention of
6
administrative corruption due to the fact that the instances created reproduce the culture
of centralization of the decisions in the governmental scope which turn the Civil
Society’s participation in mere acts of presence, used only to legitimize certain processes.
Te majority of these mechanisms do not constitute spaces for growth or strengthening of
democracy, being the Government itself the one that obstructs it.
The promulgation of Law 200-04 of Free Access to Public Information must solve this
situation and break trough the barriers so that citizenship can be well informed on matters
of interest.
The existence of Web Pages does not solve the problem of access to information by
citizens, among other reasons, because of the low levels of access to it (in the Dominican
Republic there are only 4000,000 registered Internet users), limiting the access to more
privileged and capable sectors (15% of the population is illiterate).
The majority of participation mechanisms that Civil Society has have a deliberative –not
decisive- character which tends to demotivate organizations, which dedicate time and
resources to preparing technical proposals which are obstructed by the Government.
Finally, a lot of the mechanisms pointed out by the Government in its summary, grant
participation to Civil Society Organizations in these instances without establishing
relative tasks to the problem with corruption, but instead it’s about the establishment of
public politics targeted to the corresponding sector.
With that said, and with the purpose of strengthening the mechanisms of participation of
the Civil Society and Non Governmental Organizations in the efforts destined to prevent
corruption, we propose the following:
1. A policy that institutionalizes participation mechanisms in the different branches
of Government should be adopted, establishing the formulation of a handling plan
with clear short and long term goals and the adaptation of the operational
regulations that assure the regularity of the meetings between the Civil Society
and the Government.
7
2. To guarantee the implementation of the law of Free Access to Public Information,
creating the international conditions for governmental entities can comply with it.
3. Strengthen the relationship Civil Society-Government towards solving the
problem with corruption, redefining the functions of Non Governmental
Organizations. This plan should include a chronogram that foresees products, as
well as the establishment of responsibilities for each member.
4. Develop processes of transference of technical and economical resources that
allow the fortification of organizations in the underprivileged Civil Society
Organizations in order to make them more productive.
5. Implementation of campaigns divulging the mechanisms for the right fulfillment
of the bill.
6. Implementation of campaigns divulging the existing mechanisms and the right of
every citizen to access information; through strategic alliances with Civil Society
Organizations, strengthen and create instances for citizenship in areas regarding
the demand for information.
7. Establish, by decree, a term for the establishment of Web Pages of public
institutions and create the mechanisms needed to fulfill said term.
8. Promote the creation of information systems about public management and
financial statements including the incorporation of informative portals.
1. PRESENTATION
By Resolution No. 489-98, the National Congress of the Dominican Republic the
Interamerican Convention Against Corruption, CICC, approved on march 29 1996 in the
conference of the OEA in Caracas, Venezuela. Said convention states a juridical
structure to promote and regulate the cooperation between the countries in it with the
purpose of assuring the efficiency of the measures and mechanisms that allow the
prevention, detection, penalization and eradication of administrative corruption in the
entire hemisphere. (Annexed).
The purpose of this document is to create a summary that is independent from the Civil
Society about the level of implementation from the Dominican Government in
8
dispositions of article III, clauses 4 and 11 of the Second Chapter of the Convention,
according to the questionnaire from the Experts on the Follow Up Mechanism Committee
for the Implementation of the Interamerican Convention Against Corruption.
2. THE COMMISSION
Civil Society Follow Up Commission for the Application of the Interamerican
Convention Against Corruption in the Dominican Republic is integrated by 34 social
organizations of different nature. This Commission was created in the Firs International
Seminar for the Application of the Interamerican Convention Against Corruption, held in
Santo Domingo on November 2002, and was ratified by the Workshop Seminar of the
Interamerican Convention Against Corruption summoned by Participación Ciudadana on
march 20031. (Annexed).
The Commission’s tasks have concentrated in two fundamental ones:
1. The first one let everyone in the different sectors know about the contents of the
CICC in the city as well as in the provinces.
2. The second one is to work in the making of the present summary, which gathers a
well thought analysis of the application of Article III, Clauses 4 and 11 of the
Convention about preventive measures, specifically about the “System for the
declaration of passive and active incomes by people in public duties assigned by
the law and for the publication of such declarations when required”, as well as
those regarding “Mechanisms for the stimulation of civil society’s and non
governmental organizations participation in efforts destined to prevent
corruption”.
1The Excecutive Commitee is integrated by: Acción Comunitaria por el Progreso Inc. (ACOPRO),
Asociación de Jóvenes Amantes de la Paz (ASOJAPAZ), Centro de Asesoría e Investigaciones Legales
(CEDAIL), Bloque de Organizaciones no Gubernamentales (BONGS), Instituto Nacional de la Salud
(INSALUD), Foro Ciudadano, Foros para la Participación Municipal, Consejo de Juventud de la Republica
Dominicana y Participación Ciudadana. This last one has been selected as the one in charge of organizing
the committee.
9
For the making of this summary, two sub commissions were created, which were
occupied independently in the process of recollection of information, socialization,
verification and validation.
The first part of the document answers Article III, Clause 4 of the Interamerican
Convention Against Corruption regarding the System for the declaration of passive and
active incomes on the part of people in Government places. “System for the declaration
of passive and active incomes by people in public duties assigned by the law and for the
publication of such declarations when required”.
The answers were elaborated by the sub commission composed of 6 Civil Society
Organizations: Fundación Institucionalidad y Justicia, Inc. (FINJUS), la Fundación
Federalista, Inc, La Fundación por el Enriquecimiento de los Valores Humanos y la
Ecología Inc, (FEVHE), el Bloque de Organizaciones no Gubernamentales (BONGS), la
Fundación Opción Comunitaria y Juvenil (FUNOCOJ) and the Fundación por la
Educación y Recuperación de la Adicción Inc, (FERA). These are Non Governmental
Organizations and the sub commission was coordinated by FINJUS.
The second part presents the results of the sub commission that worked in the subject of
Mechanisms for the stimulation of civil society’s and non governmental organizations
participation in efforts destined to prevent corruption, Article III, Clause 11 and its
composed of 7 organizations:
Asociación de Jóvenes Amantes de la Paz, Bloque de Organizaciones No
gubernamentales, Consejo de Juventud de la República Dominicana, Consejo Municipal
del Desarrollo del Hábitat, Fundación Dominicana de Ayuda al Anciano, Fundación
Universidad Popular, Fundación para la Reforma y Participación Ciudadana. This last
one was appointed by the Follow Up Commission to coordinate the final details.
3. METHODOLOGY USED IN THE MAKING OF THE SUMMARY
The purpose of this summary is to analyze the answer to the questionnaire regarding
dispositions selected by the experts on the Follow Up Mechanism Committee for the
10
Implementation of the Interamerican Convention Against Corruption, given by the
Dominican Government, regarding the level of implementation of the Article III, Clause
4 of the Second Chapter: “System for the declaration of passive and active incomes by
people in public duties assigned by the law and for the publication of such declarations
when required” as well as the “Mechanisms for the stimulation of civil society’s and non
governmental organizations participation in efforts destined to prevent corruption”.
The work that Civil Society Organizations have put into creating spaces of participation
in the eradication of corruption was the inspiration for this summary. We think that every
sector of society should work together to fight this problem.
For the gathering of information and for a deeper analysis we used several sources, which
allowed us to come to the conclusion we make. These were the following:
1. Letters and visitations to different state institutions asking for Sworn Declaration
of Assets made by government official s in the National Congress, the ONAP,
The Supreme Court, the DGII, the Department for the Prevention of Corruption,
the JCE, among others. (Annexed).
2. Interviews with key informants in the public sector, Civil Society Organizations
and academic institutions. (Annexed)
3. Consultation of different Web Pages of governmental institutions and
international organisms. The following institution’s Web Pages were consulted:
Attorney General’s Office, Supreme Court of Justice, and several Ministries as
well. Among the international Web Pages were: Transparencia Internacional,
Banco Mundial, Organización de Estados Americanos (OEA), Respondanet y
Organización para la Cooperación y el Desarrollo Económico (OCDE).
4. Studies born from Civil Society Organizations, and bilateral and multilateral
organisms.
11
5. Legal norms existing in the Dominican Republic regarding the subject of Sworn
Declaration of Assets, the participation of the Civil Society in actions to control
corruption in the public administration. (Annexed)
6. Answer to the questionnaire regarding dispositions selected by the experts on the
Follow Up Mechanism Committee for the Implementation of the Interamerican
Convention Against Corruption, given by the Dominican Government.
The brief prepared by Participación Ciudadana for the follow up for the Application of
the Quebec Plan was used also, in the frame of implementation of the monitoring bill to
the agreements in the American President’s Summit. (Annexed). The brief is the result
of discussion and consensus between the 34 organizations that compose the Follow Up
Committee.
FIRST PART
SYSTEM OF DECLARATION OF PASSIVE AND ACTIVE INCOMES
Article III, Clause 4
QUESTION:
Are there laws in your country that establish the system for the declaration of passive and
active incomes and for the publication of said declarations when required?
In case of an affirmative answer, describe them presenting aspects such as who the are
destined to, before who and at what moment should they be presented, what they contain,
the criterions for verification, what they are used for, and they dispositions that contain
them.
The brief we present has two objectives:
1. The analysis of the legal frame that establishes the System for the declaration of
passive and active incomes effective in the Dominican Republic.
12
2. The level of application of penal laws to the dispositions of the Interamerican
Convention Against Corruption (CICC) in the aspects regarding the tipification of
corruption acts and the mechanisms used to assure its effective application on the
part of the proper judicial organisms. In this sense, we have laws that identify and
select the acts of corruption committed by government official s, as well as
several dispositions that institute mechanisms with the purpose of guaranteeing
the efficiency and transparency in public management.
Article 102 of the Constitution sanctions anyone who, for personal gain, takes public
funds or obtains economical benefit from his position as well as the persons that have
given advantages to family and friends. Also, the bad use of funds that government
official give.
As a compliment of Constitutional norms mentioned before, we find several dispositions
regarding the subject of administrative corruption. We have, among others, dispositions
contained in Law No. 672 of July 1982 that establishes a Code of Conduct for
government officials, Law No. 14-91, Law 120-01 that institutes the Ethics Code of the
Public Servant, designed to establish honorable conduct and honesty in the performance
of government officials.
The Dominican Republic’s Penal Code identifies and sanctions this infraction. In its
Articles 123 and 124 regulates infractions committed by government officials, Article
166 talks about prevarication, Article 174 anticipates and sanctions infractions by
government officials, Article 175 speaks of infractions by government officials outside
their spectrum, Articles 177 and 179 are about bribery of government officials and
Article 265 talks about malefactors.
Finally, there is a bill to modify the Penal Code and in its second Chapter establishes
attacks to public administration by government officials (passive corruption) and in its
13
Third Chapter attacks on the public administration committed by individuals (active
corruption), acting accordingly to the requirements of the CICC.2
ANALYSIS OF THE DISPOSITIONS OF LAW NO. 82 REGARDING THE
SWORN DECLARATION OF ASSETS
The declaration of passive and active incomes of government officials is regulated by
Law No. 82 of December 1979, published in the Official Newspaper No. 09518 of
December 1979.
Who should present the Sworn Declaration of Assets
According to Law No. 82, the following government officials should present a sworn,
legalized and detailed declaration:
1. The President and Vice-President of the Dominican Republic
2. Senators and Congressmen
3. Secretaries and Under-Secretaries of State
4. Governor and Vice-Governor of the Banco Central
5. Administrators and Managers of State Banks
6. Mayor, Councilmen and Municipal Treasurers
7. Judges, members of the Public Ministry and member of the Chamber of Accounts
8. General Administrators and Sub-Administrators, General Directors and Sub-
Directors, Presidents and Vice-Presidents of state institutions
9. Province Governors
10. Presidents and Vice-Presidents, General Administrators y Sub-Administrators of
state institutions controlled by CORDE.
11. National Comptroller and Auditor
12. National Treasurer and Internal Revenue Collectors
2 Olivo de Pichardo, Semíramis. Adecuación de la Legislación Penal Dominicana a la Convención
Interamericana contra la Corrupción. Organización de Estados Americanos (OEA). Santo Domingo, 2001.
14
How is the sworn Declaration of assets made and at what time?
The declaration of assets must be realized within the first month of functions and a within
the month after he has left office. It is made trough a detailed inventory, sworn and
legalized by a Notary Public.
Contents and criterions of the Sworn Declaration of Assets
The inventory should contain all the assets of the person that is declaring, with estimated
values as well as active and passive incomes. The law does not specify regarding to
amounts of intangible passives and actives.
Who receives the Declaration of Assets? Consequences of this Declaration.
The government officials must submit their declaration to the National Treasurer. If he
fails to do so, the Treasurer can retain his salary until he has fulfilled said obligation.
How to access the declarations and its utilities
The National Treasurer will submit a copy of each inventory to the Attorney General’s
Office, in order to verify them, where third parties can obtain copies without cost.
QUESTION
Mention the results obtained by the application of former norms with statistical
data available in your country
As we pointed out when exposing the methodology used with the purpose of obtaining
information about the results of the use of the Sworn Declaration of Assets, applications
were made through direct visitations and communications to the different state
institutions which officials are under the scope of Law No. 82. (See Annex). The search
for information was focused on Web Page searches, with the purpose of establishing who
had fulfilled the obligations and to verify the availability of information regarding them.
The result of this was scarce and irrelevant, the information given was vague and not
precise, and the help received by the visited institutions was minimal. In the same way,
15
the information published through the Internet is outdated, and they only offer the basics
of their organizational structure. However, information from the ONAP was obtained
that point out the fact that 1,017 government officials are forced by law to present the
Sworn Declaration of Assets.
With the purpose of contributing results, we analyzed the answer given by the
Dominican Government to the questionnaire submitted by the Expert’s Committee.
In this sense, the answer is broad, however w considers convenient to enrich it with
the following comments:
The official answer does not indicate the level of commitment of the Sworn
Declaration of Assets of government officials which, judging from what the law
states is very extensive. According to research made by Non Governmental
Organizations, the declarations presented in the period from 2000 to 2004, do not
come to 10% of the total.
By disposition of Law No. 82, government officials’ declaration of assets must be
realized within the first month of functions and a within the month after he has left
office. The reason for this is to make a diagnosis of his incomes with the purpose of
observing their evolution and to verify if they are disproportioned regarding their
initial patrimony. If a difference exists, it could lead authorities to the pertinent
investigations.
Regarding the list of government officials mentioned in Law No. 82, it results limiting
and insufficient, due to the fact that the State has been through multiple transformations
in its functional structure. In this sense, if the Secretary of the Armed Forces is forced to
make a Sworn Declaration of Assets because of his condition of Secretary of State, then
the Chief of State and the Chief of Police should do it also.
Another aspect that should be considered is the juridical reach that Sworn Declaration of
Assets has, since what the Notary Public only states what the government officials have
“sworn under oath” to be his possessions and to certify the signature. In this sense, there
16
must be a legal mechanism that can certify or verify the existence of assets declared or
not. In does not specify the accountable and economical criteria that make it possible to
determine the value of the assets.
The law doesn’t state that the declared assets are exempt from taxes. This favors the
laundering of money resulting from corruption or traffic of narcotics, in other words, it
would allow any citizen that gets to occupy duties in the Government amnesty from taxes
not paid on the income obtained to acquire said assets3.
The National Treasures is empowered by the law to receive inventory from the public
officials, due to the fact that that he’s the one authorized to retain the salary of those who
have not made the sworn declaration in the established time. However, nowadays which
dependency should register and verify the declarations has been object of confusion,
because the entity linked to said process is the General Attorney’s Office, particularly the
Department for the Prevention of Corruption. Said practice presents some institutional
weaknesses since it is not sheltered by the law and due to the fact that this department has
rendered itself incapable of performing this task. Said practice presents some weaknesses
since they are not under the law.
This disposition can be modified in the sense that said inventories are remitted directly to
the organisms in charge of penal prosecution, that way the implemented practice can be
regulated, making the process shorter since, according to Article 5 of Law No. 82, the
Treasurer should remit a copy of the inventory to the Attorney General’s Office.
Regarding the retention of salary, it can be solve by a letter from the Treasurer to the
Attorney General.
The established sanctions for those who don’t do what the law states are diverse. On one
hand, is the retention of their salary, on the other is an admonition to those who break the
law, in this case the sanction will be applied by the hierarchical superior. Without a
doubt, these sanctions are weak compared to the infraction committed. 3 Arias Santos, Lázaro. Globalización de la Lucha contra la Corrupción. Santo Domingo, 2003
17
Bill that modifies Law No. 82, tending towards the strengthening of the system of
Sworn Declaration of Assets.
On February of 2003, it was submitted to Congress the “Bill that compels government
officials to draw up a detailed and sworn inventory legalized by a Notary Public of the
assets that constitute their patrimony”, where the regulations that allow administrative
and judicial authorities to determine if they have illicitly enriched themselves are
established.
With this, the Dominican Government moves forward towards efforts to adapt the
systems of declaration of active and passive incomes to the dispositions of the
Interamerican Convention Against Corruption, with the purpose of equipping them with
larger efficiency. However, said bill has not yet been approved. In this section, we make
a comparative analysis of the strengths and weaknesses of the bill, emphasizing in the
juridical aspects of it.
Time limit for the declaration
The project maintains the time limit of 30 days stated in Law No. 82 for the presentation
of the Sworn Declaration of Assets, from the moment the government official takes
possession to the moment he has left office. However, it states that the declaration will
be made every two years and every time he steps up to a new position.
Organism in charge of evaluating inventory
The law entrusts the National Treasurer with this responsibility, which will remit them to
the Attorney General’s Office, which will evaluate the inventories presented by the
government officials.
Extension of the compelled government officials
The principle adopted in the bill is the extension of the obligation to present inventory of
the assets of every government officials that handles public funds. This way the list of
those forced to present the Sworn Declaration of Assets will be largely increased.
18
Facts contained in the inventory
The Hill foresees more details and specifications for the declarations; however it doesn’t
establish accountable and fiscal criterions that should be taken into account for the
verification and evaluation of the presented declarations.
Sanction if the government officials does not present inventory
The laws in force states that the sanctions imposed administratively are not the only ones.
There are some contained in the Dominican Penal Code. The sanctions contemplated in
the bill are more drastic and it even contemplates that once the time limit expires on the
Sworn Declaration of Assets, the government official would resign.
Advertising of the declarations
The principle that should rule is the advertising of the information submitted by
government officials. The principle of account rendering, rests on the transparency of
this information and the effective monitoring to the use of public funds on the part of the
citizens. Coherence with the right to free access to information should prevail, because
the bill to modify Law No. 82 would exclude access to this sort of information claiming
that making the value of the assets public, would put them in a vulnerable position.
Presumption of illicit enrichment
Just like in Law No. 82, the bill reverses the principle of the presumption of innocence in
the cases of illicit enrichment imposing the weight of proof on the government officials.
This should be analyzed form the perspective of the principle of presumption of
innocence incorporated to the proper process.
Tipification of illicit enrichment
In Law No. 82, as well as on the bill, the fact could indicate a violation of the principle of
innocence, deriving from the illicit origin of the assets obtained by government officials
19
that does not comply with the presentation of inventory of the assets that form his
patrimony.
Confiscation of assets and transfer of confiscated assets
This is one of the most rigorous sanctions proposed on the bill in case a government
official is brought to justice for illicit enrichment.
Conspiracy
A new aspect that is introduced in the bill is the fact that accomplices are punished the
same way as the government officials that have broken the law.
CONLUSION AND RECOMMENDATIONS
The fundamental problem with administrative corruption has been the tolerance to it on
the part of the authorities appointed to persecute and sanction it. There is a high level of
rejection for it in the Dominican Republic, generating a broad process of construction of
proposals that make it possible to adopt mechanisms and tools to decrease the levels of
corruption and its incidence on the growth of democracy in the country.
The intention to control the fraudulent actions that lead to illicit enrichment of those
government officials that act in detriment of the State’s assets is obvious. However, the
absence of mechanisms for the application of norms, laws and regulations added to the
vulnerability of the institutions pointed for the application and fulfillment of them,
manifest the weaknesses that stop the effective application of Law No. 82, as well as the
lack of an operational system which allows the realization of activities of prevention and
control.
Due to the fact that Law No. 82 does not include severe punishments for those who
infringe said law; the sanctions should be significantly increased just like the bill
proposes. The punishments imposed should be more drastic, since the existing ones
don’t provoke enough fear to force government officials to respect the law. In this sense
20
it would be convenient to determine the sanctions that are contemplated from the
suspension of his functions to his inability to assume public positions.
It is essential to broaden the spread of those forced to present this type of declarations, at
the same time designing monitoring mechanisms for the evaluation of the government
officials’ patrimony with the purpose of detecting illicit conduct in time. An effective
measure could be that the sworn declaration of assets be made by no only the public
official but by his wife and descendants and ascendants at least to the first degree.
It is convenient to unify the criterion regarding the public official in charge of follow up
to Law No. 82, since the Department for the Prevention of Corruption exists at the
present time, organism specialized in the prevention and investigation of corruption,
created by Decree and assigned to the General Attorney’s Office of the Dominican
Republic. Despite this, a bill to modify the Law exists with the purpose of equipping that
department with independence and autonomy in its actions, conferring it the faculty to
keep record of the sworn declarations. An important goal in the preventive scope is the
establishment of a economical and sociological follow up system for public officials,
particularly those forced by Law No. 82 to give the Sworn Declaration of Assets.
Similarly, we suggest to regulate, with greater precision, the terms for the presentation of
the Sworn Declaration of Assets, as well as to specify the requirements contained within.
With the purpose of achieving a better application and observation of the Law on the
Sworn Declaration of Assets, the number of institutions in charge of verifying said
declarations should be increased to, aside from the National Treasurer, the Attorney
General and the Department for the Prevention of Corruption, make the General
Direction of Internal Revenue an entity which can verify the contents of the Declaration
of taxes. Similarly, when the Ombudsman is instituted and the follow up Commission for
the CICC can constitute monitoring instances for the correct application of the law that
orders the public officials to state the Sworn Declaration of Assets.
21
As a compliment to what was said above, we recommend that the declaration of active
and passive incomes is made within the frame of the sworn declaration of taxes that is
established in Law No. 11-92, Tributary Code of the Dominican Republic and its
modifications.
Also they should be realized according to the International Audit and Accounting Norms.
Said declarations should be properly accredited by the corresponding institution in the
Dominican Republic, or the values should be estimated by experts. This would be an
interesting point since these last can belong to a state organism that verifies said values.
There should be a mechanism that allows any citizen to access to public servant’s Sworn
Declaration of Assets. At the moment of the making of the brief there was a Web Page
for the Department for the Prevention of Corruption that contained information on some
of the declarations. In that order of ideas the application of the Law on Free Access to
Information, recently approved, should be promoted as a cross-sectional axis. The direct
relationship between free access to information and the Sworn Declaration of Assets as
mechanisms to constrict to a larger rendition of account rendering on the part of
Government officials, constitutes the best antidote against administrative corruption.
Every citizen must have knowledge of such declarations in order to emit a judgment of
the person whose behavior has come to be doubtful and to act in function of social
control.
22
MECHANISMS FOR THE STIMULATION OF CIVIL SOCIETY AND NON
GOVERNMENTAL ORGANIZATIONS IN EFFORTS DESTINED TO PREVENT
CORRUPTION
Article III, Clause 11.
MECHANISMS OF GENERAL PARTICIPATION
QUESTION
Are there juridical mechanisms in your country to stimulate participation of Civil Society
and Non Governmental Organizations in the efforts destined to prevent corruption? In
case of an affirmative answer, describe it briefly, narrate and enclose a copy of the
dispositions and documents in which they are contemplated.
ANSWER
Dominican Civil Society has positioned itself as an important actor in the processes of
strengthening democracy. At the present time, there are about 15,000 organizations
extended in the different provinces and social spaces4. This growth implies the
assumption of a more compromising role and relationship with the State, making it
essential to ponder the different mechanisms that sustain this relationship.
The proliferation of Civil Society Organizations is precise with the acceptance of the
citizenship and the importance attributed to the need of creating different ways of civil
participation, as indicated in the Democracy, Cultural and Political Study made in the
country.5 Said study revealed that 95% of Dominicans agree that the most important
mechanism towards democracy is the creation of new mechanisms of civil participation.
The existence of mechanisms of regarding the relationship between the State and Civil
Society is relatively new in Dominican society. “It’s in the 90’s when there’s a twist in 4 Quezada, Tirsis: Participación de la Sociedad Civil en la Cumbre de las Américas: La Experiencia Dominicana. Centro de Estudios Sociales Padre Juan Montalvo, Participación Ciudadana, Alianza Ongs. 2001. 5 Duarte, Isis, Brea, Ramonina: ¿Hacia dónde va la democracia dominicana? PUCMM-PROFAMILIA 2001.
23
Dominican rules to incorporate an organized Civil Society in deliberative spaces
(councils, consulting organisms) as mechanisms of representation and participation”.6
The Dominican Government pointed out in its brief, seven mechanisms to stimulate the
participation of Civil Society and Non Governmental Organizations in the efforts
destined to prevent corruption, 4 Presidential Decrees (Nos. 322-97, 407-01, 783-01, and
39-03), Law No. 124-01, as well as a bill on Social Participation. It’s important to
indicate that only two of the four decrees establish the participation of Civil Society: Nos.
783-01 and 39-03.
Another one of the mechanisms established by the Dominican Government to guarantee
the participation of Civil Society in the fight against corruption is the Advising Council in
Matters of Struggle Against Corruption (Decree 783-01 of July 2001), who is empowered
to gather information regarding the different ways that corruption presents itself in the
public administration and to present proposals and recommendations to the President to
fight corruption, including legislative initiatives.
Of the 12 members of the Advising Council, 5 are Civil Society Organizations, 1 is a
representative of the Catholic Church, 1 of the Evangelist Church, Participación
Ciudadana, the NGO Alliance and the Association of Peace Loving Youth. The other 7
are high range government officials.
It has been three years since the Council was created and it hasn’t fulfilled its mission, in
fact, its lack of operation induced Participación Ciudadana’s decision to quit7, after
realizing several efforts to make it fulfill the obligations established such as gathering
information regarding the different ways that corruption presents itself in the public
administration and to present proposals and recommendations to the President to fight
corruption, including legislative initiatives.
6 Quezada, Tirsy: Relaciones Estado- Sociedad Civil en la República Dominicana ,2002; cit. Pag12. 7 Movimiento Cívico no Partidista, institución coordinadora de esta comisión de seguimiento.
24
This problem is related to the following weaknesses:
1.
2.
3.
4.
5.
6.
Absence of a strategic plan with short and long term objectives
Lack of a functional system
Lack of key government officials in the meetings
Little understanding of the functions of each member
Integration of Civil Society Organizations that do not have this among their
priorities
And a limited proposal and operational capacity
The only initiatives that the Council exhibits are the promulgation of Decree 39-03 and
the celebration of the International Seminar for the Application of the CICC; however,
the same have been worked accordingly to this mechanism, by the Department for the
Prevention of Administrative Corruption. The promulgation of Decree 39-03 that creates
Social Audit Commissions and its application instructional issued by Resolution 01-03 of
April 2003 is, without a doubt, one of the most tangible mechanisms designed to grant
citizen participation in State actions in matters regarding public buildings. This Decree is
important for the following reasons:
1. It creates social control mechanisms that tend towards strengthening democracy.
2. It contributes to make the use of public funds more clear
3. Makes public management more democratic and efficient
4. It betters the quality of life of the communities and guarantees the safety of public
buildings, as stated in the objectives of said Decree.
In the official organism, the Department for the Prevention of Corruption, there is a lack
of corrective capacity to generate proposals and to solve problems. Of the three
constituted Social Audit Commissions, two have been working hand in hand with the
Department for the Prevention of Corruption and Civil Society Organizations that
participate in the application of decree 39-03, and the third one has been constituted with
the efforts of individuals of one of its Organizations.
25
Another important measure was the promulgation of Decree 407-01 that creates the
National Council for the Follow Up of Non Profit Associations, but this has been
obstructed by government officials that represent the private sector. This Council has not
been summoned since March of 2003. Nevertheless, the budget approved by Congress
for the year 2004 has assigned the biggest part of resources to Non Governmental
Organizations (3,236 institutions) for a total of RD$1,021,582,272.00. it is known that
this subject was object of negotiation between the Executive Power and Congress to
approve the bill of budget, in matters regarding government organizations without the
participation of the National Council for the Follow Up of Non Profit Associations. The
existence of a bill that modifies Law 520 plays an important role towards solving the
problem. The approval of a new Law for Non Profit Organizations would solve, among
other things, the classification of said Organizations and would facilitate the access to
public funds and the monitoring of it.
The existence of a bill for a Social Participation Law is also important. This bill would
regulate citizen participation in matters of public interest. However it has not yet been
turned into a law, despite the fact that it was presented by the executive power and it’s
pending for study in a commission.
The elements described before indicate the lack of effective and efficient mechanisms
that guarantee the participation of the Civil Society in the process of preventing
administrative corruption; even more the instances created for those means reproduce the
culture of centralization of the decisions in the governmental scope.
For this reason, said mechanisms do not constitute spaces for growth or strengthening of
democracy, being the government itself its number one enemy. Taking those aspects into
consideration, we suggest:
1. The adoption of a policy that guarantees the implementation of effective
mechanisms for the participation of the State’s instances trough social audit as
a monitoring application of budgetary executions by the State.
26
2. The creation of a special fund destined to define and implement a
dissemination strategy of decree 39-03 that creates Social Audit Commissions
with the purpose of guaranteeing its implementation.
3. Re-launch the Advising Council in Anticorruption Matters, establishing its
priorities trough the formulation of a work plan with clear short and long term
goals and the adaptation of an operational regulation.
4. Adoption of a legislation that rules Civil Society Organizations taking into
consideration the incorporation of a policy that promotes the right of these
Organizations.
5. Promotion and support of a law of Civil Participation that guarantees it in
matters of citizen responsibility.
OF THE MECHANISMS FOR THE ACCESS OF INFORMATION
QUESTION
Do mechanisms that regulate and facilitate Civil Society and Non Governmental
Organizations’ access to the information Under the control of public institutions?
ANSWER
On July of this year, General Law for Free Access to Information was promulgated, and
the Constitution states in its Article 108, for mass media, the access to news sources
about individual and social rights.
General Law for Free Access to Information No. 200-04 should be in force 90 days after
its promulgation, and after the operational regulations have been emitted. Said law will
guarantee the right of every citizen to receive information of any State Organism in
matters regarding acts of public administration. It constitutes an important tool for
citizens to motivate account rendering and guarantees them access to information.
Although in its answer to the questionnaire, the Dominican Government cites initiatives
that guarantee free access to public information, a well thought analysis of each initiative
27
allows us to evaluate its results; some of them were regrouped to make the following
analysis.
A. WEB PAGES
The most important source of information that citizens have on government actions is
trough Web Pages of State Organisms. However, these only offer basic orientations
about their structure and functioning and lack useful information or facts that contribute
to the transparency of public management, such as planning, budget, budgetary
executions, among others, with the exception of very few Ministries such as the Ministry
of Education. This one is equipped with an informational portal where aspects regarding
the institution’s finances are detailed, including purchases and contracts.
A relevant fact is that at the moment that this brief was drafted, out of 15 different
Ministries, 4 did not even have a Web Page. On another 4 was impossible to access them
and in the rest the information supplied was very limited or not updated.
B. MONTHLY PUBLICATION OF THE BUDGETARY EXECUTION
Among the existing laws, No. 101 compels the National Budgetary Office to monthly
publish a detailed amount of public incomes and expenses. This law’s objective is to
provide information regarding the execution of public funds and allow a follow up to
compare what was planned with was is actually done.
Te main difficulty of the mechanism is the lack of information regarding this publication.
It limits itself to the name, the State’s and the assigned amount. Law 384 establishes that
autonomous State institutions should publish a monthly status of their economical
condition. This is not fulfilled.
C. PUBLICATION OF MEMOIRS AND BRIEFS OF STATE DEPENDENCIES
The dissemination of memoirs and briefs is pretty limited and its contents are, in the
general sense, of promotion more than of information.
28
D. MECHANISMS OF THE DPCA, SUCH AS A BULLETIN, HOTLINES,
MEETING WITH THE CIVIL SOCIETY AND AN EVALUATION OF THE
NATIONAL PLAN
Although the Department for the Prevention of Administrative Corruption has made
some efforts to offer information, in the majority of the bulletins information is published
about activities realized in coordination with Civil Society Organizations.
E. LAW 82-79
The Sworn Declaration of Assets Law exists for government officials. Trough this,
citizens have access to the patrimony of high government officials at the time they
assume their functions and at the time they leave office. However, it has been approved
by the Chamber of Delegates, a proposal to modify it, which will exclude the access to
this information, claiming that it would put the official in a vulnerable position.
One of the problems with this law has been the lack of knowledge on the part of the
citizens of its existence and the absence of sanctioning mechanisms for those government
officials that do not obey it.
On another hand, information regarding the development of indicators in the institutions
inside the Social Security System, were not available, and the little information provided
in insufficient. A lot of the facts disseminated about these companies are oriented to
advertise instead of actually discosing the amounts.
Since the law has not yet been approved, Civil Society does not count with the
mechanisms to effectively access public information. The obtainment of said information
is a slow, burocratic and discriminatory process. The promulgation of Law 200-04 of
Free Access to Public Information should solve this problem, but a strong sense of
political will power will and the creation of adequate means that can make it possible for
the Government to fulfill this obligation will be necesary.
MAIN RECOMENDATIONS
29
1. Guarantee the implementation of the Law for Free Access to Information,
creating the conditions that put government entities in the capacity to obey
the law, this include campaigns of information to the different powers of
the State.
2. Produce campaigns of disclosure of the few existing mechanisms and the
right that citizens have to access them trough strategic alliances with Civil
Society Organizations.
3. Strengthening and creating instances that connect citizenship with the
active demand of information areas.
4. Establish by decree a time limit for the establishment of Web Pages of
every public institution.
5. Promote the creation of information systems regarding public management
and financial states.
6. Creation of a program of transparency to inform the State’s assets and who
has them.
OF THE MECHANISMS FOR CONSULTATION
QUESTION
Do mechanisms for government officials to carry out consultations to the Civil Society
and Non Governmental Organizations in matters regarding their functions and that can be
used for the purposes of preventing, detecting, sanction and eradicate corruption exist in
your country?
ANSWER
Without a doubt, Civil Society’s participation sets out to achieve transparency in State
institutions is growing, generating a larger compromise on the part of all the different
sectors and the acknowledgement of the existence of a Civil Society as an important actor
in the search of solutions to the problems affecting the Dominican Republic.
30
In a study of the Strengthening of Non Governmental Organizations Program,
implemented by INTEC and financed by the BID (2002), indicates that “permanent
cooperation and exchange as mechanisms of consensus and the decision to search for a
shared management and to build a democratic government, require 2 fundamental
conditions: will power and trust between the actors”8
In the case of the Dominican Government, achieving both objectives has been hard. The
study about “Cultural Politics and Democracy in the Dominican Republic, 1977”, made
by Isis Duarte and Ramón Tejeda Holguín, established that Dominicans have the
understanding that democracy is an enjoyment individual freedom, order and authority.
In this sense, the non existence of consulting mechanisms is not casual.
In its answer to the questionnaire, the Dominican Government emphasized within the
existing mechanisms:
1. The Development Councils
2. The Decree No. 783-01 that creates the Advising Council in Matters of
Struggle Against Corruption
3. Public Views made by the Congress
4. National Plan for the Prevention and Struggle Against Corruption
The existence of these mechanisms has not allowed an optimal integration and
participation by Civil Society Organizations, preoccupied with solving problems of
corruption in the public administration. Regarding the Development Councils that are
called by the President, to listen to the communities’ demands they are realized without
logistic organization or planning and the promises are often not fulfilled.
The public views are spaces where Civil Society fixates its position regarding consulted
bills. They are instituted in the Regulations for the Chamber of Delegates, Chapter III.
In its article 3 it establishes that public views are events summoned by the members of a
commission to listen to every person’s opinion interested in participating on the
8 Programa de fortalecimiento de la Sociedad Civil. Las relaciones Estado – Sociedad Civil.
31
announced subject. They will be written and handed in. Although said views should be
previously notified in the newspapers or the Internet 3 working days before, this
disposition is not carried out.
Usually, participation in these instances is given by governmental designation and the
criterions of participation are given according to public popularity of the institution or the
person designed, without offering space for Organizations in the sector where its election
is made. Since this is one of the most important subjects, we would like to present a
comparative chart with the results suggested by the Dominican Government in its answer
to the questionnaire and our observations.
Comments on the results presented by the Dominican Government, regarding the
mechanisms for the stimulation of Civil Society’s participation and the Non
Governmental Organizations in efforts to prevent corruption
SUBJECT RESULTS PRESENTED BY THE
DOMINICAN GOVERNMENT
COMMENTS FROM THE CIVIL
SOCIETY FOLLOW UP
COMMITEE
Mechanisms to stimulate
the participation of Civil
Society and Non
Governmental
Organizations in the efforts
to prevent corruption.
Sprouting of social organizations
destined to prevent corruption
(Action Against Corruption,
Volunteers for the Prevention of
Corruption)
The sprouting of these organizations
was the result of initiative from
sectors linked to churches, Non
Governmental Organizations among
others.
The first of these organizations
existed for a short time and its field
of action was very limited and has
not yet found the support of
Governmental Organizations.
That some important organizations
agree on terms with the Attorney
General’s Office and the Department
Although these cases exist, the
impact has been limited.
32
for the Prevention of Corruption to
prevent corruption (Participación
Ciudadana, Federación Dominicana
de Municipios, Centro Nacional de
Educación a Distancia, Asociación
Dominicana de Radiodifusores,
among others)
In the case of Participación
Ciudadana it has only functioned for
the promotion of the Decree 39-03 in
a limited way because it doesn’t have
sufficient resources to impel the
Decree.
The making of a national diagnosis
about corruption.
The participation in said diagnosis
was consulting and with no visible
results.
Enrichment of the proposal of the
Department for the Prevention of
Corruption about the Social Audit
Commissions, as well as the
elaboration of the project of decree
which will instill them.
It can be considered as a result of the
enrichment of the proposal. However,
the decree proposal remained in the
Juridical Consultancy for over a year
without being promulgated.
Making the projects for laws of
Social Participation, Non Profit
organizations, the Penal Procedure
Code, Ombudsman, among others.
Of the cited examples, at least four
are initiated by Civil Society
organizations.
Of the 5 cited, at least three have
become laws. Civil Society
disagreed with the contents of the law
for Public Ministry and in the case of
the Ombudsman; although it’s been
promulgated for over two years it
hasn’t been made effective.
Taking these elements into consideration, the organizations that integrate the Follow up
Committee for the Implementation of the Interamerican Convention against Corruption
present the following recommendations:
33
1. The establishment of decisive channels in the decrees and laws that promote the
consultation.
2. The creation of follow up mechanisms to the proposals presented by the Civil
Society.
3. Higher levels of publication of the existing mechanisms and the formulation of
tangible and viable plans that allow its strengthening.
4. Definition of a general policy in the relation between the State and the Civil
Society that serves as a reference to the decrees, conventions and laws that
embody the organisms of the Civil Society.
5. The realization of account rendering briefs of the existing mechanisms and of the
Civil Society Organizations that integrate them.
6. The establishment of Civil Society Organization selection policies that
fundamentally judge the levels of tangible and strategic contributions in the
sectors where the mechanisms will be conformed.
OF THE MECHANISMS TO STIMULATE AN ACTIVE PARTICIPATION IN
PUBLIC MANAGEMENT
QUESTION
Do mechanisms that facilitate, promote and obtain an active participation of the Civil
Society and the governmental organizations exist in your country in the process of
adopting policies and decisions, with the purpose of preventing, detecting, sanctioning
and eradicating the acts of public corruption? In case of a positive answer, describe them
briefly, narrate and enclose a copy of the dispositions and documents in which they are
established.
ANSWER
The Dominican Civil Society has made noticeable efforts to actively participate in the
adoption of policies that prevent and sanction administrative corruption from the public
34
morality, movement issued in 1986 to fight corruption, to the most recent initiatives such
as the anti-corruption platform proposals presented by FINJUS, as well as the ten
postulates presented by Participación Ciudadana to fight corruption.
In answer to the questionnaire, the Dominican Government indicates 15 mechanisms that
contemplate the participation of the Civil Society in the adoption of policies destined to
prevent, detect, sanction and eradicate corruption. However, in a study made by Civil
Society’s Organization Strengthening Program it is emphasized that the majority of
existing mechanisms, including laws and decrees that include the participation of the
Civil Society, do it with a deliberative or conclusive nature and in doing so the spaces
where the Civil Society’s Organizations can participate are scarce.
It must be added to this that many of the mechanisms cited by the government give
participation to Civil Society Organizations in these instances without establishing
relative functions to the problem of corruption. The permanence of the same entities and
or people that are representing the sector in these mechanisms, generally provoke a
dependency towards governmental organisms and, in other cases of transaction for the
obtainment of institutional benefits, around their functions of representing the sector.
The Civil Society’s Organization Strengthening Program and the Civil Society Follow
Up Commission for the Application of the Interamerican Convention Against Corruption
in the Dominican Republic, propose the following recommendations:
1. The approval of the Social Participation Law and that this law states explicitly the
right that Civil Society Organizations have to participate in the public
management in order to prevent or sanction administrative corruption.
2. The creation of stable and permanent mechanisms that procure account rendering
from the governmental organisms.
3. The existing strengthening organisms should be declared, their composition and
the role played by the Non Governmental Organisms that integrate it should also
be revised, as well as their work plans and evaluation mechanisms. Said plan
should include a work chronogram that foresees products and termination dates,
35
as well as establishing responsibilities for which each member of the mechanisms
should account for.
4. Transfer process of technical and economic resources should de developed as to
allow the strengthening of the weaker Civil Society Organizations so they are
conditioned to be an active part of the created mechanisms.
OF THE MECHANISMS OF PARTICIPATION IN THE PUBLIC
MANAGEMENT FOLLOW UP
QUESTION
Do mechanisms that allow the participation of the Civil Society and of the Non
Governmental Organizations in the public management follow up? Do you have the
means to prevent, detect and sanction public corruption in your country? In case of an
affirmative answer, describe it briefly, narrate and enclose a copy of the dispositions and
documents in which they are contemplated.
ANSWER
The country does not have enough mechanisms that allow the participation of Civil
Society Organizations in the public management follow up in order to achieve the goals
established in the Interamerican Convention Against Corruption. In a study by Casal &
Associates the absence of mechanisms to monitor public functions is stated, as well as the
limitations that citizens and Civil Society Organizations have to face in order to fulfill
that role.
Aside from the fact that in your answer to the questionnaire, the Dominican Government
identifies the participation of the Collegiate Direction of public management instances as
a mechanism, the failure of this type of mechanism has been recurrent, due to the fact that
they are structured to guarantees the decision making from the governmental
representatives.
36
Although decree 685-00 creates the National Planning and Decentralization System
exists, one of the objectives of said decree is to reach a higher control of the public
sector and it establishes it’s first article the creation of institutional procedures and
mechanisms that bind and coordinate between public institutions, the Civil Society and
the private sector, the actions of the National Economic, Social and Administrative
Planning System, haven’t worked out and are now paralyzed and blocked from the
organism responsible for its implementation.
The weaknesses of the identified mechanisms are the same that were established in other
answers, their performance is going to depend on:
1. The political will of the public official that coordinates it.
2. A favorable junction that can be used by the government be it as an immediate
promotion or to obtain a purpose outside the agenda.
3. The need for a legitimate strategy or action from the governmental organism.
The consequence of this situation is a lack of adequate functioning of the existing
mechanisms, and above all, the non fulfillment of the functions assigned at the time of its
constitution. The Civil Society Follow Up Commission for the Application of the
Interamerican Convention Against Corruption in the Dominican Republic suggests:
1. That a follow up function to the public management of the organisms that are
believed to have the participation of the Civil Society.
2. That the Dominican government divulges the participation mechanisms and
instruments with which the Dominican State counts.
3. To make the existing mechanisms more efficient, giving them rules that allow
their well functioning with the participation of the interested sectors and those that
create then establish a sanction for those who interrupt their performance.
4. The public officials must be asked to create account rendering mechanisms in
which Civil Society representatives have participation.
37
BIBLIOGRAPHY
1. Amiama, Manuel A. Prontuario de Legislación Administrativa Dominicana.
Editorial Tiempo, S.A. 1987.
2. Anteproyecto Código Penal de la República Dominicana. Comisionado de Apoyo
a la Reforma y Modernización de la Justicia. Ediciones Jurídicas, Santo Domingo.
República Dominicana. 2001.
3. Arias Santos, Lázaro. Globalización de la Lucha contra la Corrupción. Santo
Domingo, 2003
4. Constitución de la República Dominicana. Santo Domingo. 2002.
5. Convención Interamericana Contra la Corrupción (CICC)
6. Duarte, Isis, Brea Ramonina y Tejada Ramón. Cultura Política Dominicana: entre
el paternalismo y la participación. Santo Domingo. Pontificia Universidad Madre
y Maestra. febrero 1998.
7. Ley No. 82, de 1979.
8. Ley No. 14-91, del 20 de mayo de 1991, sobre Servicio Civil y Carrera
Administrativa.
9. Olivo de Pichardo, Semíramis. Adecuación de la Legislación Penal Dominicana a
la Convención Interamericana contra la Corrupción. Organización de Estados
Americanos (OEA). Santo Domingo, 2001.
38
10. República Dominicana. Procuraduría General de la República. Departamento de
Prevención de la Corrupción. Legislación Básica de la Administración Pública en
República Dominicana. Santo Domingo, 2002.
11. República Dominicana. Procuraduría General de la República. Departamento de
Prevención de la Corrupción. Seminario Internacional Aplicación de la
Convención Interamericana contra la Corrupción. Santo Domingo, 2002.
12. Quezada Tirsy, “Las Relaciones Estado-Sociedad Civil en la Republica
Dominicana”, Colección Sociedad Civil, Programa de Fortalecimiento de
Organizaciones de la Sociedad Civil. 2002
13. Respuesta del Estado Dominicano al Cuestionario en relación a las disposiciones
enviadas por el Comité de Expertos del Mecanismo de Seguimiento de la
Implementación de la Convención Interamericana Contra la Corrupción. Versión
2 del 2 de diciembre del 2002.
14. Participación Ciudadana “Propuestas anticorrupción Presentadas a los Candidatos
Presidenciales en las elecciones Generales del 2004”, Santo Domingo, Abril
2004.
15. Reglamento Cámara de Diputados, Santo Domingo, 2004.
16. Participación Ciudadana “Investigación sobre Leyes, Proyectos de Leyes y
decretos Anti Corrupción: 1996-2003”. Santo Domingo.2004.
17. Quezada, Tirsis “Participación de la Sociedad Civil en la Cumbre de las
Américas: La Experiencia Dominicana”.Centro de Estudios Sociales Padre Juan
Montalvo, Participación Ciudadana, Alianza Ongs. 2001.
39
18. Departamento de Prevención de la CORRUPCIÓN administrativa “Diagnostico
de la Corrupción en la República Dominicana: Recomendaciones para su
Reducción Progresiva”, Santo Domingo 2003.
19. OEA “Convención Interamericana Contra la Corrupción”, 1996.
20. Participación Ciudadana “Informe de Seguimiento al plan de acción de Québec”
Santo Domingo, 2004.
21. Participación Ciudadana “Veinte Años de Impunidad: Investigación de Casos de
Corrupción en la Justicia Dominicana 1993-2003”, Santo Domingo, 2004.
22. Congreso Nacional “Ley General de Libre Acceso a la Información Pública”,
Santo Domingo, 2004.
40