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Part 3
On 6 December, two days after the "Dili riots," La'o Hamutuk issued a press release, stating that the killings and target property destruction are serious events which shed light on important issues. We described what happened during the disorder, debunking international media reports of widespread random rioting and anarchy. We pointed out that a few hundred people where manipulated to destroy selected property for political reasons, and that the public authorities first escalated the tension, and then failed to act effectively to prevent the mob from destroying its targets, most of which were symbolic of the Prime Minister. We observed that the only people who suffered serious injuries were demonstrators who were shot, reportedly by police.
Legally, the United Nations has the mandate for safety and security for the entire country, not just its own facilities, and it failed, along with East Timor's police and fire services, to do its job. In addition, the easy incitement of the crowd into violence stems not only from police overreaction, but also from underlying conditions: massive unemployment, poor education and other public services; limited mutual respect between government and civil society; frustration with the pace of democratic and economic development; widespread post-conflict and post-traumatic stress; lack of confidence in peaceful processes for change. Although UNTAET made some progress in addressing these problems, much remains to be done and international responsibility continues.
La'o Hamutuk's complete statement is available from our office or here. We make seven recommendations, including that UNMISET effectively support East Timor's police (including procedures to handle unruly crowds without escalating tension or violence), and evaluate its own performance and withdrawal timetable. We also urge the international community to increase its commitment to help East Timor address the economic, political and social causes of disaffection that was manipulated into violence.
On 1 October, East Timor and the United States signed a Status of Forces Agreement (SOFA). SOFA agreements, which exist between hundreds of countries, specify the criminal laws, tax responsibilities, immigration rights, use of public services and other rights and responsibilities of soldiers from one country who are in another - in this case, U.S. military based in East Timor.
Criminal responsibility is most important - for ordinary crimes, such as robbery, rape, assault and murder. (This is different from the "impunity agreement" signed in August, which only applies to war crimes and crimes against humanity under the jurisdiction of the new International Criminal Court. See LH Bulletin Vol. 3 No. 7, back page.)
In most SOFAs, the soldiers are committed to obey the laws of the country they are visiting (see box below). If they violate the law, they could be prosecuted either by their own country or the one they are in; the SOFA defines which country has the principal jurisdiction. In a typical SOFA, the host country has jurisdiction for most violations, except if the victim is from the soldier's country. In some SOFAs, such as the one between the U.S. and the Philippines, the Philippines gives up primary jurisdiction except in cases of particular importance to them.
In any event, both countries have concurrent jurisdiction, and either may prosecute cases where the country with primary jurisdiction fails to do so. In East Timor, East Timor has no jurisdiction over U.S. soldiers _ only the U.S. can decide to prosecute.
The SOFA between the U.S. and East Timor treats United States military personnel as if they worked in the U.S. embassy. It invokes the 1961 Vienna Convention on Diplomatic Relations to give them "diplomatic immunity" from prosecution and other responsibilities. They are not subject to East Timorese taxes, contract regulations or criminal laws. East Timorese authorities can never arrest or detain them, charge them with crimes, extradite them to other countries, search their homes or personal property, compel them to testify in court, or hold them responsible for any half-East Timorese children they might father. They cannot be sued for actions related to their official duties.
The SOFA applies to U.S. military personnel in East Timor - soldiers and foreign civilian employees of the U.S. Support Group East Timor (USGET) and its DynCorp contractor (See LH Bulletin Vol. 3, No. 2-3), crews of visiting warships, UN military observers from the U.S., U.S. military trainers and advisors to East Timor's government, any other Pentagon personnel in East Timor for activities agreed by the two governments, and their families. East Timorese military personnel in the United States (if any), do not get the same privileges.
The Preamble of the Status of Forces Agreement "recognizes the independence and sovereignty of the Democratic Republic of Timor-Leste as matters of the highest importance." Both countries "reaffirm that the principles of mutual respect, friendship, good faith, partnership, and cooperation will guide the implementation of this agreement." But the agreement's nine articles do not embody partnership; they show no mutual respect. What they recognize is the power of a large country over a small one; they affirm that East Timor's hard-won sovereignty cannot stand up to the might of the United States.
The agreement went into effect immediately upon signing, and does not require approval by East Timor's Cabinet, Parliament or President. It cannot be changed until April 2004, and even then only with six months advance notice.
La'o Hamutuk comment: Applying diplomatic immunity to U.S. military personnel in East Timor is a distortion of the Vienna convention, which is based on equal rights for both countries and is intended for diplomats, not soldiers. The Vienna Convention states, "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States."
If East Timor is truly independent, its leaders need to stand up for the rights its people gave their lives for. Criminals who violate the rights of East Timorese people, whatever their nationality or uniform, must be held accountable.
| SOFA between the United States and the Republic of (South) Korea, 1966 "It is the duty of members of the United States armed forces, the civilian component, the persons who are present in the Republic of Korea pursuant to Article XV, and their dependents, to respect the law of the Republic of Korea and to abstain from any activity inconsistent with the spirit of this Agreement, and, in particular, from any political activity in the Republic of Korea." SOFA between the United States and the Philippines, 1998 (similar to many others) "It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines." Status of Mission Agreement between UN and East Timor (for UNMISET), 20 May 2002 (similar to UNTAET agreement) "UNMISET and its members shall respect all local laws and regulations. The Special Representative shall take all appropriate measures to ensure the observance of those obligations." SOFA between the United States and East Timor, 1 October 2002 does not contain a single word acknowledging that East Timor has local laws and regulations, or committing U.S. personnel to respect the spirit of the agreement or to abstain from political activity. |
In August, La'o Hamutuk published two articles about Japanese aid and electric power. UNDP wrote us a letter, which is printed here in full. Our response is on the following page. La'o Hamutuk is committed to provide the most complete and accurate information available to us.
 | United Nations Development Programme, East Timor UN Agency House Caicoli Street Dili. Tel: (+670 390) 312 481 Fax: (+670 390) 312 408 http://www.undp.org.tl/ |
The Editor
La'o Hamatuk Bulletin
East Timor Institute for Reconstruction Monitoring & Analysis Dili
12 September 2002
To the Editor:
Your August 2002 bulletin contains articles concerning Japan's aid to East Timor and the power sector in East Timor. UNDP is one of the primary conduits for Japan's assistance to East Timor, including in the power sector, and I would like to take this opportunity to rectify a number of errors and misperceptions in your articles.
1. Your list of Japan-funded infrastructure rehabilitation projects is incomplete and many of the project values which you attribute are incorrect. The following is an accurate list of Japan's infrastructure projects managed by UNDP and UNOPS on behalf of, and in close collaboration with, relevant counterparts in the Government of East Timor.
First tranche (signed July 2000)
Dili water project, phase 1 (ongoing): $11,280,000
Dili-Ainaro-Cassa road project (completed): $4,700,000
Laclo irrigation project, phase 1 (completed): $2,737,415
Rural power project (completed): $1,912,000
Comoro power station project (completed): $4,200,585
Dili port project, phase 1 (completed): $2,650,000
Second tranche (signed May 2002)
Dili port project, phase 2 (commenced July 2002): $2,999,000
Dili water project, phase 2 (commenced July 2002): $2,361,000
District water project (commenced July 2002): $2,405,000
Laclo irrigation project, phase 2 (commenced July 2002): $6,129,000
Hera polytechnic project (commenced July 2002): $4,670,000
The total value of these infrastructure projects is $46,044,000
This and other detailed project information is readily available from UNDP and UNOPS at any time.
2. Officials from the Government of East Timor are very much involved in the management of the projects. Cabinet level officials or their directors-general chair the Project Coordination Committee (PCC), while departmental directors chair the bi-weekly meeting of the Project Working Committee (PWC). Decisions by both committees are taken by consensus. The Embassy of Japan and JICA (and UNDP and UNOPS) do not make any unilateral decisions regarding these projects; all decisions are made as a committee with the Government of East Timor leading all debates. In addition, there are frequent ad hoc meetings between UNDP's and UNOPS's local project staff and relevant governmental, district-level and community counterparts.
Per the terms of the Memoranda of Agreement (the signatories of which included a leader of the CNRT in July 2000 and ETPA ministers in May 2002), UNOPS acts as the executing agency for each project, while UNDP fills a monitoring function. UNDP and UNOPS collectively receive a 6% management fee to cover the administrative costs associated with managing the projects on behalf of the Government of East Timor. This figure is lower than the typical administrative charges charged by implementing agencies around the world. Please note that the donor's provision of funds to cover this management fee is in addition to the funds donated for the project activities in question, i.e. the management fee does not come out of the funds designated for the actual project activities.
3. You mention the inadequate electricity distribution network in the village of Iliomar in Lautem district. During the design stage of the power station rehabilitation project, there was in fact an adequate network in place. Unfortunately, vandalism and theft in subsequent months altered the situation to the detriment of the community. Furthermore, in 2001, ETPA announced that it would assume responsibility for this and other sub-district villages' distribution networks.
4. Your reluctance to mention the considerable good that comes out of these and other Japan-funded projects is a shame, to say the least. I would urge you to interview community members and local workers who benefit from these projects, as well as relevant ministers and other officials in the Government of East Timor.
The Power Sector in East Timor
1. Your "Special Report on Electricity" contains a number of errors, omissions, misperceptions and consequently flawed analysis (see below). You allege that "it is difficult to obtain information about EDTL" and you only quote two officials from EDTL in the course of your investigation. In fact, there is a multitude of information available on the power sector from a wide variety of sources, particularly from a number of ministries and other Government departments, donor countries, implementing agencies, development agencies, local businessmen and various advisors in the government, all of whom are extremely concerned about the power sector. Indeed, a power sector steering committee has been convening bi-weekly in recent months, comprising officials from the Ministry of Transport, Communications & Public Works, the Ministry of Finance & Planning, the Ministry of Justice, the Government's Project Management Unit (PMU), representatives of the private sector, the ABD, the World Bank, UNDP, UNOPS, UNMISET and JICA advisors and other consultants ands experts. Unfortunately, your report does not quote representatives of any of these groups.
2. Given the multitude of problems facing the power sector at this time, your report is timely. However, your investigation deplorably overlooked many of the short- and long-term crises and challenges afflicting the sector. This omission was compounded by the numerous factual errors in your report.
High fuel costs are just one aspect of the current crisis in the power sector. Other well documented problems include, among others, (i) EDTL's management and human resources crisis, (ii) the poor maintenance of generators and other equipment, resulting in equipment failure and blackouts, (iii) the high levels of wasted and stolen electricity in Dili, and (iv) the failure of the current metering and billing system and the resulting 90% nonpayment levels among residential users.
Many of the entities and individuals mentioned above are working together to address and to try to resolve these and other problems. Certain multilateral organizations are contributing significant resources to assist the Government to prepare an overall strategy for the mid- and long-term development of the power sector, as well as recommendations for alleviating short-term crises.
3. Your report grossly mischaracterizes the nature of Japan's assistance to the power sector. Japan funded two emergency rehabilitation projects in the sector, one of which targeted 13 sub-district power stations in rural areas (costing US$ 1,912,000), the other of which involved repairs to the generators at the Comoro power station in Dili (costing US$ 4,200,585, not US$ 478,000 as stated in your report). These projects involved the rehabilitation or replacement of hardware only. The funds for these projects were not "designated to meet the needs of all electricity control centers in the country," as you allege, nor were such funds designated for EDTL's recurring operating expenses. The Japanese government does not "run" 13 sub-district power stations, as you allege. The Government of East Timor, through EDTL, owns and runs these and all other power stations in East Timor. Finally, the Japan-funded Comoro power station project involved repairs to four of the original five generators at the power station, not the provision of 1MW of generation capacity, as you allege.
These projects were not "handled from start to finish by the Japanese government, UNDP and UNOPS," as you claim. The CNRT was a signatory to the two Memoranda of Agreement associated with these projects, and ETPA and ETTA were intimately involved in the project's progress. As Mr. Virgilio Guterres of EDTL may have explained to you, he and his predecessor, Mr. Filomeno Andrade, chaired both the PCC and PWC meetings for much of these projects' lifecycles.
The single largest project outside Dili is not funded bilaterally by Japan or Portugal, as you allege, rather by the TFET donors through the Emergency Infrastructure Rehabilitation Project (EIRP) administered by the Government's PMU (formerly the ADB PMU). This project involves the rehabilitation of 15 district and sub-district power stations. Your failure to mention the work of the EIRP in your Special Report on Electricity is a glaring omission.
4. The cartoon on page 7 of the bulletin in question portrays UNDP, UNOPS and the Ministry of Finance as filching funds designated for the power service. Needless to say, this is an entirely false _ and libelous _ portrayal of the roles of UNDP, UNOPS and the Government of East Timor. Finally, your cartoon on page 10 of the bulletin demonstrates a worrying attitude on the part of La'o Hamatuk towards the role of development assistance in developing countries. Subsidizing free electricity as a means unto itself is an unsustainable use of funds and is unlikely to alleviate poverty or promote good governance.
Thank you very much.
Yours faithfully,
Haoliang Xu
Senior Deputy Resident Representative, UNDP
La'o Hamutuk appreciates all comments, corrections and clarifications to our reporting, and thanks Mr. Haoliang Xu of the UNDP for taking time to assist our work. We have gained valuable information from his letter and will certainly contact his office in the future as we continue to look into international assistance and projects that are managed by UNDP. We regret that some of the information we published was outdated or inaccurate.
La'o Hamutuk's investigative work is often very challenging, and these investigations into Japanese bilateral assistance and assistance to the electricity sector were no exception. Japan's channeling of aid through UNOPS and UNDP to contractors (and often then to sub-contractors) with occasional World Bank, ABD, JICA and UNMISET involvement means there is a complicated system of relationships between various international and foreign agencies. It is often difficult to know which agency has the most accurate data. In this case, we believed that the Japanese and East Timorese Governments would have the most up-to-date figures, but we were wrong. Unfortunately, neither of those agencies directed us to the UNDP or any other agency when we were confirming the data for the Bulletin.
Before publication, we gave a draft of the article to JICA and the Japanese Embassy, but they were unable to get back to us in the roughly two weeks before we had to go to press. In an effort to make our investigations accurate, La'o Hamutuk almost always asks the subjects of the article to review them before we publish. In this case perhaps we should have asked UNDP as well.
We have also often had difficulty getting information from many institutions (see editorial below). When we started looking for data on the electricity sector in January 2002, we approached UNDP several times, but were unable to obtain the information requested; the international representative we spoke with was new and no one else there was willing to give us the information. We are pleased to now have better cooperation from UNDP, and continue to be grateful to individuals and institutions willing and able to answer our specific questions. Additional problems result from language barriers as often documents from international agencies are only in English and international staff are unable to communicate in a local language. Given that La'o Hamutuk, with experienced local and international investigators, often has difficulty getting accurate and understandable data, there is no doubt that other East Timorese have difficulty getting information about the development of their own country.
There are considerable good results from projects funded by the Japanese government as well as other governments. If, however, these projects do not seem to adequately involve, benefit and/or empower East Timorese, we must examine these problems as a community. Sadly, some East Timorese in East Timor's Electricity Department (including its head, Virgilio Guterres) feel consultation with East Timorese has been insufficient. They maintain that the only East Timorese with a background in electricity involved in planning for the electrical sector were 'overseas East Timorese' who had no knowledge of how electricity was generated during Indonesian times. These sources ask for more consultation with East Timorese who work 'in the field' and hope that East Timorese government officials would perform more than a `rubber-stamping' function in decisions about East Timor's electricity.
Unfortunately, Japan's aid has not always reached its goals. As there are many players involved in the provision of electricity in East Timor, problems can not be blamed on Japan or any one organization, as we noted in our article. The Iliomar power station was cited as one example. Several Iliomar residents recently claimed that no vandalism had occurred to the sub-district power station except that done by militias in 1999, before Japan's project began. They stated that Iliomar still does not have electricity and while Japanese aid supplied two generators, there are no cables nor poles to connect them to houses.
Our investigation into the electrical sector did focus more on how East Timorese - both within agencies and in communities - understood and experience these projects, and as noted above, we pledge to seek information from more institutions and agencies in the future. The cartoon which was described by UNDP as demonstrating "a worrying attitude … towards the role of development assistance in developing countries" is, from our perspective, a reflection of the questions many Timorese have about where development money is going. We do, however, acknowledge that the second cartoon does not accurately represent the current situation. We regret the implication of "filching" and should have shown the money being exchanged in front of the people, not behind their backs.
La'o Hamutuk will continue to look into both Japanese assistance to East Timor and developments in the electricity sector. We recognize that there is much more investigation that needs to be done and we greatly appreciate assistance from all relevant offices in carrying out the work we do.
As a new nation, East Timor is creating structures, laws, regulations and procedures to define how its government will work, what services it will provide for its citizens, and what responsibilities those citizens have to the government. Although East Timor's Constitution provides a skeleton for governmental administration, the flesh, blood and skin of the Democratic Republic of East Timor is just now being designed. Many decisions taken between 20 May and the end of 2002 will have long-lasting effects for the people of East Timor.
Consequently, it is vital that the East Timorese public be able to participate in these decisions. Our people endured centuries of autocratic rule from afar, where our opinions meant nothing. Now that we are governing ourselves, our opinions are critical to keeping our government democratic, and those opinions must be as informed and well-thought-out as possible. East Timorese civil society should participate fully in the debates about actions our Government and Parliament plan to take, and to do that we need good information about what they are considering. Unfortunately, such information is often kept from the public until the critical decisions have already been made.
During the six months since East Timor became independent, La'o Hamutuk has encountered more than a dozen instances where international institutions or civil servants would not release information or required approval by the Prime Minister or his high-level subordinates. We are not listing specific examples because we don't want to embarrass individuals who are only following others' examples or directives, but it's a widespread pattern:
* Even legal agreements between East Timorese officials and foreign agencies _ signed and already in effect _ are often secret. For example, the Status of Mission and Status of Forces Agreements between UNMISET and East Timor's government, which define the responsibilities, powers, and legal situation of PKF troops here, are, according to UN Headquarters "not released to the public."
The culture of governmental secrecy has a long history in East Timor, but the recent United Nations Transitional Administration made it blatant. In December 2000, UNTAET informed all its East Timorese and international personnel that "no information, which is internal to the Organization can be released, distributed or disseminated by any means, to third parties without the prior written approval of the Head of Mission and/or the Director of Administration; and personnel should not communicate to any person outside the Mission any information known to them by reason of their service with the Mission, unless they have been authorized in writing to do so in the course of their duties. …" (See LH Bulletin Vol. 1, No. 4 "In Brief")
Unfortunately, the pattern of secretiveness established during the unaccountable UN administration has carried over into the now-independent East Timor, in both international and East Timorese institutions. It is a pattern which has severe implications for democracy, which requires transparency, openness, and participation by civil society in decisions made by elected representatives.
Section 40 of the Constitution of the Democratic Republic of East Timor guarantees "Every person has the … right to inform and be informed impartially." Section 41 provides journalists with "the access to information sources." Yet such right and access has been the exception more often than the rule.
Draft legislation, regulations, and policy papers are kept from the media and the public until after they have been approved by the Council of Ministers, at which time it is often too late to make basic changes. Less fundamental information is concealed by civil servants at all levels, afraid of their supervisors. International donors, multilateral agencies, and foreign governments keep secrets which would be public under their own procedures or in their own countries _ but which in East Timor they will not divulge without the Government's permission.
One measure of democracy is government with the consent of the governed. How can the governed _ the people of East Timor _ give informed consent if we don't know what our government is doing? It is essential that there be a continuing dialogue between the electorate and their representatives in Parliament and Government, so that the public can give meaningful input before decisions are taken. This is the difference between "socialization" practiced by dictatorships and "consultation" taken in a democracy.
Everyone in East Timor is learning new skills. Our Ministers have never been Ministers; our Parliamentarians have never been Parliamentarians; few of our public servants have ever worked for a democratic government; our journalists have never enjoyed freedom of the press; our citizens have never experienced democracy. As we take on these new roles, we learn some things from consultants, training and capacity-building - but the more important, enduring lessons come from our common experience, sharing our knowledge and learning from each other.
This can only work if information is freely exchanged, and if those in positions of power respect the experiences and views of others in the society. All too often, foreign consultants prepare proposals which are discussed in secret by the Council of Ministers, only to become public after they are approved by the Council, sent to Parliament, and leaked by Members of Parliament.
How can the Ministers know what the people think if the people do not know what the Ministers are considering? How can the Parliamentarians represent their constituents if both the Parliamentarians and their constituents are kept in the dark until legislation is presented for immediate passage?
If rumors could be sold for money, East Timor would be a very rich country. But we will be poor in democracy unless the media (including La'o Hamutuk) and the public have the facts necessary for accurate information, reporting, and commentary. Otherwise, the people will be confused and the government will waste valuable time and energy countering false reports or rebutting uninformed opinions.
The lack of transparency is so pervasive that it must be addressed at the top. We urge the Prime Minister and heads of international institutions here to establish a policy and inform their subordinates that all information should be considered public unless there is a specific compelling reason, such as national security or personal privacy, for it not to be. This will not only make it easier for La'o Hamutuk to do our work of monitoring international institutions active in East Timor, but will significantly strengthen the democratic foundation and long-term stability of the Democratic Republic of East Timor.
On 8 October, the International Financial Institutions (IFIs) Study Group, a coalition of local NGOs, held a seminar on East Timor's recent joining the World Bank, IMF and Asian Development Bank. Panels composed of representatives of the IFIs, East Timorese civil society, and the Government discussed what the IFIs have already accomplished in East Timor, and possible benefits and dangers in the future. A full summary of the seminar will be available on La'o Hamutuk's website.
On 12 November 2002, the government of East Timor organized a commemoration to pay tribute to the hundreds of East Timorese youth slain in the Santa Cruz cemetery by the Indonesian occupying forces in 1991. During the events, the People of East Timor for International Tribunal, an NGO coalition, once more called upon the United Nations to establish an international tribunal to try the people who committed crimes against humanity against East Timor during the Indonesian occupation, including the perpetrators of the 12 November 1991 massacre. According to the group, it is now time for the UN to set up the tribunal, since the ad hoc human rights court in Jakarta has failed and cannot bring justice to East Timor. The group also marched around Dili wearing masks and carrying pictures of U.S. President Gerald Ford, Secretary of State Henry Kissinger, Australian Prime Minister Gough Whitlam, Generals Suharto, Benny Murdani, Wiranto, Prabowo and others who masterminded 24 years of human rights violations in East Timor.
In October, the Judicial Systems Monitoring Programme (JSMP), an East Timorese NGO, reported on "The Right to Appeal in East Timor." In their 23-page analysis, JSMP pointed out that although "the right to appeal is a central component of the right of the accused to a fair trial, [but] … it has not been possible to exercise the right of appeal in East Timor for almost a year." They blame the absence of a functioning appellate court on a lack of planning by UNTAET and the East Timor Ministry of Justice, and on poor coordination between these two institutions. JSMP sees the application of international human rights standards, including the right to appeal, as even more pressing given the fragile state of East Timor's justice system. They recommend urgent actions to form the court and provide the judicial and administrative processes in both trial and appellate courts necessary for it to function. The full report is available at www.jsmp.minihub.org/Resources.htm#reports.
La’o Hamutuk, The East Timor Institute for Reconstruction Monitoring and Analysis
P.O. Box 340, Dili, East Timor
Mobile: +61(408)811373; Land phone: +670(390)325-013
Email: laohamutuk@easttimor.minihub.org
Web: http://www.laohamutuk.org
International contact: +1-510-643-4507, lh@etan.org