Relatório da CI - IV. Responsibility C

C. Institutional responsibility

1. Conceptual framework of institutional responsibility

135. The events of April and May cannot be considered in isolation. They took place within a context of particular institutional weaknesses and decisions made by those in positions of authority. This section examines the contribution of those factors to the events of April and May. In undertaking this task the Commission draws upon two aspects of its mandate: first, to “identify issues which contributed to the crisis”, and second, to “clarify responsibility” for the events of April and May. In this latter respect, it will be recalled the Commission understood that its mandate included both individual and institutional responsibility. Institutional responsibility has been taken to attach to acts and omissions of institutions which materially contributed to the events. Particular attention is given to the security sector. The actions of the Government, the President and UNOTIL are examined also.

136. The Commission recognizes that Timor-Leste is a fledgling democracy. Its institutions are developing and face significant resource limitations. However, failures of the rule of law and accountability were at the heart of the events of April and May. Governance structures and existing chains of command broke or were bypassed. Roles and responsibilities became blurred. Solutions were sought outside the existing legal framework. Institutional weaknesses and divisions within and between institutions were brought to the fore and culminated in open confrontation between PNTL and F-FDTL on 25 May.

2. The overarching framework of the security sector

137. Timor-Leste does not have a national security framework. PNTL and F-FDTL are given specific mandates under the Constitution. Although laws have been enacted governing the activities of these institutions, the regulatory framework is not yet comprehensive. Aside from the general forum of the Council of Ministers, security sector policies are developed largely within the institutions rather than by a coordinating body or in compliance with an overall plan. The Superior Council for Defence and Security exists as an advisory body to the President but does not have policymaking power. Key legislation has been passed in the form of government decree rather than by Parliament. This has limited the opportunity for public discussion. The Commission considers that the lack of a national security framework to appropriately guide the uniformed services has contributed to a lack of effective coordination and cooperation between F-FDTL and PNTL.

138. Tension between PNTL and F-FDTL predated the events of April and May. In 2004, for example, there was an F-FDTL attack on a police station in Los Palos. This was the subject of a report by an Independent Commission of Inquiry established by the President (Los Palos report). Irritants fuelling the tension included discrepancies in conditions of service, different levels of resourcing (with PNTL receiving greater international support) and the creation of specialized units within PNTL with paramilitary functions. It had previously been considered that divisions between the two institutions reflected separate loyalties: F-FDTL to the President and PNTL to the Prime Minister. The events of April and May revealed more subtle divisions within and between the forces. Neither PNTL nor F-FDTL was a monolithic organization; significant relationships existed among individuals or groups and between entities of both institutions .

3. F-FDTL

(a) Structure and composition

139. F-FDTL was established originally from the ranks of FALINTIL veterans. Some 56 per cent of those persons first appointed were from the east. As a result of a deliberate strategy by the F-FDTL High Command to address this imbalance, by 2006 the composition reflected the national average of 35 per cent easterners and 65 per cent westerners. However, easterners remained slightly over-represented among officers, constituting approximately 50 per cent of appointments. The force strength of 1,435 in January 2006 was reduced to 715 as a result of events in the first half of 2006. Of the current force, 72 per cent came from eastern districts. F-FDTL includes headquarters staff, a Military Police Unit, 1st and 2nd Battalions, a Naval Component, as well as Force Logistics and Communications.

140. Civilian oversight of F-FDTL exists in the form of the Minister of Defence, supported by a Ministry. In practice the Ministry is minimal. It has had authorization for 18 civil service posts since 2004, but currently has only four national staff and one international adviser. No defence policy exists to guide the development of F-FDTL. A base legislative framework exists in the form of UNTAET legislation, the Organic Law on F-FDTL and various administrative instructions. It was only following the crisis that a more comprehensive package of bills was presented to the Council of Ministers. The Commission notes that many of the recommendations made in the Los Palos report concerning strengthening the systems of F-FDTL remain unimplemented.

(b) Veterans issue and east-west issue within F-FDTL

141. Divisions existed within F-FDTL prior to the events of April and May. The Los Palos report noted problems in the relationship between veterans and new recruits. Seemingly as a consequence of the veterans’ status, age and health factors, older veterans were given preferential static assignments. In the context of the over-representation of ex-FALINTIL easterners in the officer ranks, disagreements easily became conflated with east versus west disputes. F-FDTL took some steps to increase the transparency of processes, including the introduction of a new promotions policy. Under this policy, at least eight eastern captains and lieutenants were not promoted due to breaches of discipline and other concerns, whereas at least six western officers considered meritorious were promoted. However, rifts persisted within F-FDTL.

(c) Weak accountability mechanisms

142. F-FDTL has both a Code of Military Discipline detailing procedures for breaches of service discipline and provisions within its governing law concerning the liability of F-FDTL members to prosecution for criminal offences. However, few cases of alleged criminal conduct are brought before the courts and internal disciplinary processes suffer from delays and a lack of transparency.

(d) Handling of the petition and dismissal of the petitioners

143. The handling of the petitioners’ grievances contributed significantly to the crisis. Without needing to reach any final conclusion on the merits of the petitioners’ claims, it is apparent to the Commission that there were significant shortcomings in relation to the institutional handling of these matters. First, the lack of an established and transparent grievance/redress of grievance procedure represented a significant impediment to the ability of the institution to respond in a timely fashion to internal complaints. This was particularly so with respect to complaints of systemic discrimination by those in command positions. While the F-FDTL command has stressed the importance of the hierarchical chain of command for considering complaints, there seems to have been no detailed established procedure governing how complaints could be formally considered and reviewed. Second, the slowness of the institutional reaction within F-FDTL inherent in the initial objection to both the “form” of the petition as an unsigned document and its being sent first to the President meant that the opportunity for rapid intervention was lost. A commission of investigation was established in February. However, its members included persons named by the petitioners as having been involved in discriminatory conduct. In the absence of consensus between the petitioners and F-FDTL as to the appropriate means of investigation, the process broke down and petitioners left their barracks. This led to the announcement of the dismissal of the petitioners en masse in March.

144. While recognizing that the Chief of the Defence Force was faced with a mass walkout of personnel and the need to maintain the discipline of the force, the Commission notes significant discrepancies between the action taken by him and the procedures required by law.3 The Chief of the Defence Force made a public announcement on 16 March that the petitioners were to be considered civilians as of 1 March. Legal advice had been commissioned by the Defence Force from the internationally appointed legal adviser to the Council of Ministers. There was no legal adviser within F-FDTL or the Ministry. The legal advice was finalized on 20 March. It is not clear whether the decision of the Chief of the Defence Force predated or postdated the legal advice. The advice concluded that the petitioners could be considered to have voluntarily abandoned their posts and recommended undertaking an individual process for discharge. The advice was attached to a letter of 21 March from the Chief of the Defence Force to the Minister of Defence in which the Minister was informed of the result. Petitioners report that they heard of the decision through the media. While the Minister of Defence considered that the discharge of the petitioners was generous, as they might otherwise have been charged with rebellion, there was a distinct lack of due process. The Administrative Instructions governing discharge prescribe consideration of individual cases against particular grounds, distinct decision makers for discharge processes for officers as opposed to other ranks, and the establishment of notification procedures through the unit commanders. Cases of resignation are also considered as subject to this discharge procedure. It is the view of the Commission that the discharge decision undertaken without appropriate procedures contributed significantly to the build-up of tension and highlighted significant institutional weaknesses.

(e) The events of April and May 2006

Calling out of F-FDTL

145. When called upon to provide military assistance to the civil power (the process for which is discussed in paragraphs 163-166), F-FDTL was little prepared to undertake this 3 Under the Timor-Leste Decree-Law of 5 May 2004 on the Organic Structure of the FALINTIL - East Timor Defence Force (FALINTIL-FDTL) (Decree-Law 7/2004), there was continuing reliance on the disciplinary arrangements made under UNTAET laws. Under the UNTAET Regulation on the Establishment of a Defence Force for Timor–Leste (regulation 2001/1), the grounds for dismissing officers were established, but the procedures were to be clarified through later Administrative Instruction. For other ranks, the basis and procedure was left to later Administrative Instruction. Administrative Instructions (AIs) were promulgated by the Chief of the Defence Force for both purposes, for officers: AI Staff 015, 30 October 2003; and for other ranks: AI Staff 003, 30 October 2003.

function.

The Commission concludes that responsibility for this lies with the Minister of Defence and the Chief of the Defence Force. The means of conducting such operations had not been detailed comprehensively in instruments, leaving only the general prescription in the Organic Law. F-FDTL line units had not carried out training exercises with PNTL. F-FDTL training focused on actions relevant to national defence and did not encompass civilian law-enforcement functions. Prior to the deployment on 28 April, a breakdown in communications systems led to repeated convoys of F-FDTL vehicles travelling through Rai Kotu and Taci Tolu. Deployment orders were transmitted orally, leaving some room for confusion. Commanders in separate deployment locations were not equipped to be able to communicate with each other, except by sending runners or vehicle patrols. During the deployment the large volume of gunfire used by the military made credible to the community rumours of mass killings and increased hostility towards F-FDTL.

146. Issues of coordination also arose in the deployment of F-FDTL to Fatu Ahi on 23 May. Although senior members of F-FDTL attended a coordination meeting with PNTL on the morning of the planned joint patrol, information gained concerning the location of Major Reinado seemingly was not communicated to other F-FDTL soldiers who had already left to undertake the joint patrol.

Weapons transfer to civilians

147. The transfer of F-FDTL weapons is described in paragraphs 95 to 96 above. The Commission concludes that in arming civilians, the Minister and the Chief of the Defence Force acted without lawful authority and created a situation of significant potential danger. This danger was realized in the Mercado Lama incident described in paragraph 87.

Armed confrontation of 25 May between F-FDTL and PNTL

148. By 25 May the F-FDTL command considered that F-FDTL was subject to a campaign of attack by PNTL. They responded militarily. The armed confrontation on 25 May must be viewed against the background of a lack of coordination and communication between PNTL and F-FDTL. However, it is apparent also that limited steps were taken by the F-FDTL command to verify the extent of the threat posed or to use non-military channels to resolve the perceived threat. On 25 May the F-FDTL High Command did not attempt in the event to contact those in operational command of PNTL or to engage the Prime Minister or President in resolving the situation. TheCommission is of the view that it was the duty of the Chief of the Defence Force to exhaust all avenues either to prevent or stop the confrontation with PNTL.

4. PNTL

(a) PNTL structure and composition

149. PNTL was established in August 2001 during the UNTAET period of administration. The United Nations retained executive authority over policing until 20 May 2004, at which point there was a handover to the PNTL General Commander. Of the initial 2,000 recruits, 370 had served formerly with the Indonesian police force. By 2006 the number of PNTL officers had increased to over 3,000. In addition to district formations, PNTL has a police intelligence service, a migration service, three special police units - UIR, UPF and URP - and a number of subsidiary units. Civilian oversight is provided in the form of the Minister of the Interior and the Ministry, although the Ministry is staffed by more police officers than civilians. The Decree-Law on the Organic Law of the National Police of Timor-Leste (PNTL) establishes that the PNTL General Commander (and PNTL) is “subordinate” to the Ministry of the Interior and is expressly obliged to execute orders of the Minister.

(b) Factionalism and politicization

150. PNTL was fragile prior to April 2006. The fragility related not only to concerns about the level of professional skills of the PNTL officers, whose training had been relatively short and segmented, but was compounded by the factionalism and politicization of the institution. Groupings emerged on the basis of former identities (ex-Indonesian police, ex-resistance, ex-Indonesian university students) and coalesced around senior commanders. The Commission has also been informed that PNTL had become divided and politicized as a result of the actions of the Minister of the Interior. These actions were said to have taken the form of issuing operational orders (including for personal or party political purposes), undermining the chain of command and selectively handling disciplinary processes. As a result, a parallel command structure emerged. Further groupings formed within PNTL based upon their relationship with the Minister. Some east-west tension was evident within PNTL prior to the crisis. Concerns were raised at the National Dialogue in August 2004. In the same year the Nacionalista movement was formed by 80 eastern PNTL officers. The movement was publicly critical of the institution of PNTL and the PNTL General Commander. This led to disciplinary proceedings for “disloyalty” against some 21 PNTL officers. The Minister of the Interior recommended also that the Deputy Commander (Administration) be removed from his position despite his not having been subject to a disciplinary process. Hence, by the time of the crisis PNTL had significant fracture lines.

(c) Weak accountability systems

151. In the face of repeated complaints of misconduct by PNTL officers, PNTL gave attention to strengthening internal accountability systems. The Professional Ethics Office and the Inspectorate within the Ministry of the Interior were established. However, processes were undermined by a lack of resources and through political interference. Several PNTL officers named in section IV as being reasonably suspected of criminal conduct during the events had previously been the subject of repeated disciplinary complaints. Relatively light penalties had been imposed.

(d) The events of April and May 2006

Police response to the demonstration and events of 28 April

152. The events related to the police response to the violence at the Government Palace on 28 April 2006 are described in paragraphs 47 to 48 above. The Commission considers that the operational handling of this violence was deficient. Although the PNTL command had received assurances of a peaceful demonstration from the petitioners, the nature of the demonstration and rising tensions on 28 April warranted a more robust police readiness.

153. An inadequate number of PNTL officers were present at the Government Palace. At the time violence broke out, the police resources were limited to one Dili Task Force platoon, 16 UIR officers and some district PNTL officers. Given the lack of contingency planning and the tendency of lower-ranking officers to rely upon their senior commanders, PNTL officers at the scene were unclear as to their operational responsibilities in the absence of those senior commanders. At the headquarters, the agitated intervention of the Minister of the Interior, including his removal of a weapon from the armoury, would have contributed to an atmosphere of panic.

154. Many police officers present at the demonstration site lacked sufficient equipment to undertake their functions. Regular PNTL officers had only their weapons. Not all members of UIR had complete sets of riot gear. Only some officers had protective masks when tear gas was used. Radio-receiver bases were operating ineffectively, which severely restricted radio communications, and commanders were unable to transmit their operational orders effectively. Intelligence received through the Police Information Service appears not to have been processed properly nor used. A similar lack of cohesion and uniformity was noticeable in the PNTL response to the incidents of violence at Comoro.

155. The Commission notes that the PNTL Command did not launch an immediate investigation. General Commander Martins told the Commission that he had requested reports from senior officers but was not provided with them. This level of dysfunction in turn meant that the institution had no mechanism to assist it in correcting itself, or to give confidence to the population that failings or individual misconduct would be addressed. Significant distrust grew both within and outside PNTL as to the reasons for the failure. This distrust served to further fracture the already fragile PNTL.

Events in Gleno on 8 May

156. Given the context described in paragraph 61 above, the Commission considers the operational decisions made in response to the situation to have been deficient. Deploying six eastern UIR members was a questionable decision given the state of tension surrounding eastern police and UIR after the events of 28 April. The relatively small number of police already present did not attempt to check the crowd for weapons or take other preventive action such as establishing a security cordon. When Deputy Commander (Operations) Babo went to Gleno, he was accompanied by a small number of police officers. The limited precautions then taken to protect the unarmed eastern UIR officers contributed to the resulting injury of one and the death of another officer.

157. The Commission concludes that the PNTL General Commander, as the official with responsibility for the daily operations of PNTL, bears primary responsibility for the operational failings of PNTL in relation to 28 April and 8 May. However, these actions cannot be divorced from the prior weaknesses and divisions within PNTL. In this context, the Commission concludes further that responsibility attached also to the Minister of the Interior for his failure to address these issues.

Breakdown of the chain of command of PNTL and the events of 23 to 25 May

158. April and May witnessed the complete breakdown of the PNTL chain of command. The events at Gleno, in particular the resulting suspicion that the command decisions made by the PNTL leadership were motivated by pro-western sentiment, resulted in a deepening of east-west tension within PNTL. At this time the Deputy Commissioner (Operations) was directed by General Commander Martins to remain in Gleno for his safety. Thus, he was not available for operational command. The Deputy Commander (Administration) ceased his duties soon thereafter. The PNTL General Commander was absent for reasons of sickness during part of May. On 24 May, the General Commander abandoned his post, left Dili and become incommunicado. This was after he was informed that F-FDTL was going to attack and that he was a target. The General Commander took with him approximately 10 heavily armed security police. Thus, as of 24 May, there was no senior management in control of PNTL or available to provide guidance.

159. The Commission has dealt with the departure of operational police from PNTL in paragraph 47 above. It considers this action to be directly related to the pre-existing factionalism within PNTL. It would appear that the General Commander himself had lost confidence in eastern officers by early May, as exemplified by his authorization of the redistribution of semi-automatic weapons to and separate training of “trusted” western PNTL. This reinforced east-west tensions and existing imbalances within PNTL. Although the PNTL command did not sanction the attacks of 23 and 24 May involving some PNTL officers, they are related to the breakdown in the chain of command, existing factionalism and a prior history of limited accountability. The Commission considers that the abandonment of post on 24 May by the PNTL General Commander was a serious dereliction of duty which left the PNTL operating without the benefit of senior leadership. It considers also that the Minister of the Interior did not take sufficient steps to respond to the breakdown in the chain of command in exercise of his functions as the political head of PNTL.

Arming civilians and irregular arming of PNTL

160. As described in paragraphs 89 to 94 above, the Minister of the Interior armed civilians, some of whom were later allegedly involved in the commission of criminal acts. General Commander Martins was also involved in redistributing weapons to western officers and the removal of weapons from the PNTL National Armoury without the knowledge of the armoury officer as described in paragraph 97. It is a matter of serious concern to the Commission that notwithstanding the existence of minimal formal procedures for the issuance of weapons from the armoury, both the Minister of the Interior and the General Commander bypassed these procedures. The lack of checks and balances in relation to such a serious matter as weapons control is a significant institutional failure. Responsibility must be attributed to both the Minister of the Interior and the PNTL General Commander.

5. The Government

161. As the above sections have made clear, primary responsibility for the problems within FFDTL and PNTL rests with those in operational command and the relevant ministers. Yet the Government, as the overall organ responsible for development of policy, also had the responsibility to respond to critical problems within and between the institutions.
162. It is clear to the Commission that the Government, through the leadership of the Prime Minister, was active in seeking political solutions to the petitioner issue. Following the events of 28 April, the Government responded promptly with the establishment of three specialized committees: a Commission of Notables (to look into the substance of the petitioners’ complaints); a Committee for the Verification of Details about the Dead and Injured (in relation to allegations of 28-29 April); and a Committee for the Audit of Damaged Property and Goods. Other indications of the Government’s readiness to respond to the ongoing crisis include the convening of high-level security meetings and the encouragement of cooperation between PNTL and F-FDTL.

163. However, in the light of the seriousness of the problems that had developed within and between these institutions, the Commission concludes that the Government was insufficiently proactive. Concerns about the inappropriate behaviour of the Minister of the Interior had been raised repeatedly with the Prime Minister in previous years, including by the President. These concerns were not addressed adequately. The Government failed to take sufficient steps to defuse tensions between PNTL and the F-FDTL. No national security policy was developed nor was further action by the relevant ministers demanded. The decision of the Chief of the Defence Force to discharge the petitioners was not discussed by the Council of Ministers.

The calling out of F-FDTL

164. The calling out of F-FDTL in aid of the civilian power is described in paragraphs 52 to 55 above. Given the nature of such a decision, the Commission is concerned regarding the manner in which it was made. The Commission is not in a position to evaluate whether a situation of “serious or widespread disruption of public order” existed as of the evening of 28 April such as to justify the formal call-out of F-FDTL. The Commission is able to conclude that the Government did not follow the procedures established by the Organic Law of F-FDTL regulating such action. These omissions are significant since the procedures serve as an important check against arbitrary or unwarranted action by the Government.

165. The Commission notes numerous breaches of the Organic Law. Not all required members were present at the meeting of the Crisis Cabinet at the residence of the Prime Minister. The President was neither notified of nor invited to this meeting. His agreement was not obtained prior to the deployment of F-FDTL. Despite a malfunction of the telephone system on 28 April, no attempt was made to contact him using alternative methods. The failure to involve the President is of particular concern given his role as F-FDTL Commander in Chief. Further, when the decision was made to use F-FDTL, no formal declaration of a state of crisis was made. No document was created delineating the basis for the declaration, the territorial scope of the declaration, the degree of intervention by military authorities and powers conferred and the manner of cooperation between F-FDTL and PNTL or field operations command decisions. While a subsequent report to Parliament includes an instruction signed by the Prime Minister bearing the date 28 April 2006, the Commission is satisfied that this instruction was not written at the meeting.

166. The Prime Minister told the Commission that no written order had been issued to F-FDTL, but explained that the urgency of the matter did not permit such action. The failure to issue a written order created confusion as to the exact scope of the authorization of the deployment of FFDTL. When the Commission interviewed members of the Crisis Cabinet, it noted significant variations in perceptions of what was authorized, notably concerning the geographical areas of deployment.

167. Furthermore, the Commission has already noted, in paragraph 54 above, that some F-FDTL officers, namely the Military Police, had been authorized to intervene on 28 April prior to any Crisis Cabinet meeting. This action was authorized unilaterally by the Prime Minister.

168. The responsibility for the lack of appropriate procedures and control relating to the calling out of F-FDTL to aid the civil power must fall collectively on those members of the Crisis Cabinet who were present. However, particular responsibility lies with the then Prime Minister in his capacity as Head of the Government and as the author of the instructions to F-FDTL.
Response to the allegations of the distribution of weapons to civilians

169. The evidence before the Commission establishes that Prime Minister Alkatiri was aware of allegations of transfer of weapons to civilians at least by 21 May. At the meeting on 21 May there was specific reference to the weapons issue as described in paragraph 93. Prime Minister Alkatiri attempted to organize an audit of weapons, although this was viewed as unfeasible once the PNTL General Commander had informed him that weapons had been sent out of Dili for security reasons. Other members of the Government present did not fully disclose information. The Prime Minister failed to use his firm authority to denounce the transfer of weapons to civilians. No further steps were taken by him to address the issue. Within three days the Minister of Defence had agreed to precisely this course of action.

5. The President

170. The powers of the President are defined in the Constitution. Although the President’s specific powers are relatively limited, the broad nature of the role combined with the incumbent’s personal status as the foremost leader of the independence struggle created a great potential for the blurring of responsibilities with regard to governance. While it is evident that the President acted properly in relation to the early behaviour of petitioners, by referring them back to F-FDTL, some of his later statements and actions show that the potential for the blurring of responsibilities was realized.

171. With respect to the speech of 23 March 2006 (as described in para. 36 above), the Commission considers that the President should have shown more restraint and respect for institutional channels by exhausting available mechanisms, such as the Superior Council for Defence and Security, before making a public address to the nation. Similarly, the Commission notes that by intervening personally with Major Reinado (as described in para. 60), the President did not consult and cooperate with the F-FDTL command, thereby increasing tension between the Office of the President and F-FDTL.

6. UNOTIL

172. The role of UNOTIL in the events of 25 May 2006 is described in paragraphs 79 to 85, above. UNOTIL clearly intended to bring about an end to the armed confrontation. The Commission notes that the individual UNOTIL personnel who intervened did so at great personal risk. The Commission has found previously that the shooting of PNTL officers after the ceasefire had been established was an unauthorized criminal action by individual F-FDTL soldiers. Both the Chief of the Defence Force and the UNOTIL personnel believed that the ceasefire would be maintained. In such circumstances, responsibility for the shooting of the PNTL officers cannot be ascribed to UNOTIL.

173. Nonetheless, the Commission notes that there were shortcomings in the preparedness and approach of UNOTIL to this intervention. No crisis management team was assembled to facilitate the pooling of relevant information and the identification of a clear strategy, including a communication strategy with domestic authorities. No collective plan was devised for the intervention. There do not appear to have been sufficient channels of communication established prior to or during the intervention to enable effective control to be exercised by the senior UNOTIL leadership. No specific directions were given to those who volunteered to intervene. Great reliance appears to have been placed on the personal military and police experience of certain individuals. A more coordinated approach might have permitted greater use of the collective resources of UNOTIL in the intervention.

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