Joint Command for PNTL and F-FDTL Undermines Rule of Law and Security Sector Reform in Timor-Leste

Original Citation: 2008 ETLJ 2 Joint Command for PNTL and F-FDTL Undermines Rule of Law and Security Sector Reform in Timor-Leste (Draft)

Bu V. E. Wilson B Sc Env Sci (Hons) LLM [1]
19 February 2008

Introduction
In the early morning of last Monday 11 February in Dili, the President, Jose Ramos Horta was seriously wounded by gunfire, the Prime Minister Xanana Gusmao narrowly escaped a similar fate, and Major Alfredo Reinado and one of his lieutenants were shot dead.

The latest violent and dramatic events in Timor-Leste have led to a flurry of speculation and conjecture on motivations for, and involvements in, the attacks. This has occurred through word of mouth, the electronic and printed media and the ubiquitous SMS message. Of course, no Timor watcher is immune to this process.

It has also lead to an outpouring of finger pointing, claim and counterclaim regarding the shortcomings in security provision. Claims have been made that United Nations Police (UNPOL) refused to assist the wounded President; and were generally unavailable for the protection of the Prime Minister who was required to flag down a microlet [2] for assistance. The Commander of the Armed Forces (Falintil-Forças de Defesa de Timor-Leste or F-FDTL), Brigadier Taur Matan Ruak, has called into question the capacity of the Australian- led International Security Forces (ISF), UNPOL and the East Timorese Police Force (Polícia Nacional Timor-Leste or PNTL) to prevent the attacks. The UN has counter-claimed that the F-FDTL, and not the UN, were responsible for perimeter security of the leaders’ residences. Additionally the UN has claimed that they had come to the aid of the President in minutes, and had fought off the Prime Minister’s attackers with long-barrelled weapons.

The events of last Monday are a terrible setback for peace and stability in Timor-Leste. However, the events also highlight serious existing problems of ambiguity regarding responsibilities for public security, police reform and wider security sector reform processes currently underway in Timor-Leste [3]. More alarmingly, the hasty decision of the Timor-Leste Government, last Sunday 17 February to place the police under military command is a time bomb that has the capacity to seriously affect not only the security sector reform process in Timor-Leste, but also further undermine the extremely fragile rule of law.

This paper will question the legal basis of the decision as well as discuss the background to, and dangers inherent in, the ongoing conflation of the roles of the PNTL and F-FDTL.

Rule of law issues
On the same day as the attacks on the President and Prime Minister took place, the Acting President, Vicente da Silva Guterres, exercised his competencies under Section 85 (g) of the Constitution of the Democratic Republic of Timor-Leste to declare a state of siege in accordance with Article 25 and Article 115 (2) c, for a period of 48 hours. On 13 February, the state of siege was extended for a further 10 days until 23 February.

In accordance with Article 25 (3) of the Constitution, “a declaration of a state of siege or a state of emergency shall be substantiated, specifying rights, freedoms and guarantees the exercise of which is to be suspended”.

This was done through the enactment of a Parliamentary Law [4] which specified duration, territorial scope, the suspension of the right of movement (between 8pm and 6 am), and the suspension of the right of assembly and demonstration.

Under Article 4 the law guarantees a range of rights during the state of siege including:

a) the right to life;
b) the right to physical integrity;
c) civil capacity and citizenship;
d) the non-retroactivity of criminal law;
e) the right to defence in a criminal case;
f) freedom of conscience, religion and worship,
g) the right not to be subject to torture, slavery or servitude,
h) the right not to be subject to cruel, inhuman or degrading treatment or punishment, and
i) the guarantee of non-discrimination

Article 5 recites the guarantee of the citizen’s right of access to the courts and to the Ombudsman for Human Rights and Justice.

The Prime Minister noted in his announcement of the extension of the state of siege that it “does not call into question the fundamental rights of citizens, or suspend[ing] the constitutional principles of the nation, but requires minimum measures of exceptional character.”

The Constitution of the Democratic Republic of Timor-Leste is very clear on the division of powers between the police and the military, with the former essentially being responsible for internal security and the latter for external security. The competencies of the PNTL are further elaborated in Decree Law 8/2004 and those of the F-FDTL in Decree Law 15/2006. The F-FDTL Decree Law provides for F-FDTL to support the civilian authorities; i.e., the PNTL, not the other way around. This support is also required to be prescribed in detail "by a specific statute". However, as there is no legislation covering military aid to a civil power or national security policy, the question of how police and military should work together in states of siege or emergency is not clear.

Nonetheless, it would appear that the decision made at the Extraordinary Meeting of the Council of Ministers on February 17 mandating the general chief of the Armed Forces to create a joint command integrating PNTL and F-FDTL for the execution of security operations conducted during the declaration of the state of siege may well be unconstitutional.

Under Section 30 (2) of the Constitution, no one can be arrested or detained except under terms clearly provided for by law. This is not a competency enjoyed by the F-FDTL. However, in discussions with friends in Dili today (19/02) they reported that F-FDTL are already searching houses without warrants and claiming they have powers of arrest.

The decision of the Council of Ministers would also appear to contravene Security Council Resolution 1704 that established the United Nations Integrated Mission in Timor-Leste (UNMIT) and mandates the provision by the UN of executive policing within Timor-Leste until such time as the PNTL is reconstituted. Further, it would appear to be in contravention of the supplementary agreement between UNMIT and the Government of Timor Leste that places PNTL under the command of UNPOL, in particular in relation to operational matters (United Nations Integrated Mission in Timor-Leste and Democratic Republic of Timor-Leste 2006).

This is not the first time that F-FDTL have undertaken to arrest citizens in contravention of the law.

In early 2003, two separate attacks by armed groups on the civilian population occurred in rural areas in Timor-Leste with five people killed in Atsabe [5] and two in Atabae. Following the attacks in Atsabe, the UN Peacekeeping Forces (PKF), who still held defence responsibilities at the time, temporarily transferred responsibility for defence operations to the F-FDTL in certain parts of Ermera and Bobonaro Districts. F-FDTL conducted a sweeping operation arresting around ninety people including a number of juveniles.

At the time, the local NGO, the Judicial System Monitoring Program (JSMP), criticised the deployment of F-FDTL noting that they did not have powers of arrest and that the men’s detentions were not reviewed by a judge within the required seventy-two hour period (JSMP 2003a; JSMP 2003b). The response to JSMP by Timor-Leste Government leaders including Xanana Gusmao, Mari Alkatiri and Brigadier-General Taur Matan Ruak, as well as by members of Parliament, was rapid and strident. They unanimously and vociferously supported the decision to deploy F-FDTL, commencing an early contribution to public confusion about the respective roles of PNTL and F-FDTL.

The case not only illustrated the lack of understanding of the applicable law by the leadership but also the lack of legislative and policy framework for enlisting military aid to a civil power. It also indicated a much deeper problem of a perceived lack of legitimacy of the PNTL, and a widespread belief in the affected communities that it was only F-FDTL who could really provide internal security (Wilson 2008).

The clear separation of the roles of the police and the military, and their conduct in accordance with the law, should be a fundamental tenet of the rule of law in any country. This is clearly not happening at present in Timor-Leste.

The next section of this paper will discuss how the failure to clearly distinguish the legitimate respective roles of the two institutions is posing a very real threat to the prospects of the reform of the PNTL and broader security sector reform in Timor- Leste by placing two hostile organisations in unreasonable proximity.

Police building and security sector reform issues
As well as being of doubtful legal basis, the decision to merge the PNTL and the F-FDTL is an extremely dangerous decision. The two institutions are ostensibly involved in a coordinated process of review and reform, as a cooperative venture of the Timor-Leste Government and UNMIT[6] . This process is occurring as the crisis of 2006 in Timor-Leste is widely understood to have come about as a result of the weakness of the security institutions (United Nations 2006). The 2006 crisis resulted in the killing of 37 people, the displacement of 150 000 people and serious fractures within and between the F-FDTL and PNTL, and arguably a catastrophic disintegration of the rule of law.

In reality, the hostilities between PNTL and F-FDTL that became more apparent during the crisis have not been addressed and are still very much in evidence. Some of the tensions between the two institutions are grounded in the manner of their establishment and a disparity in resource allocation. However, the creation of the F-FDTL had considerably more to do with dealing with disaffected veterans of the resistance than any prospect of their defending the state against external aggression [7]. Consequently, since the beginning, the F-FDTL has been an organisation with weapons and training in search of something to do. The ongoing failure of the Timor-Leste Government to distinguish in practical terms between the roles of the two institutions is now laying the groundwork for further future instability.

In addition, both UNMIT and the Government of Timor-Leste suffer from serious capacity problems to carry out the review and reform processes. UNPOL and the PNTL have a poor working relationship and there is a lack of openness on obstacles encountered by both UNMIT and the Timor-Leste Government in progressing both police reconstruction and security sector reform. These factors already seriously jeopardise the chances of sustainable police building and security sector reform in what may be a very limited window of opportunity. Further detail of this is provided in “Smoke and Mirrors: Institutionalising Fragility in the Polícia Nacional Timor Leste” which is available on the Charles Darwin University website and the recent report by the International Crisis Group (International Crisis Group 2008; Wilson 2008).

Since the creation of the PNTL and the F-FDTL, there has been a history of fighting between the two institutions and a sense that the other organisation is not legitimate. F-FDTL have not infrequently sought to intervene in the work of the PNTL when F-FDTL members have been arrested or come under investigation. In January 2005, following a dispute between a soldier and civilians, members of the F-FDTL stormed a police station and a hospital ,fired shots, destroyed property and took 10 police officers hostage and detained them at an army base (United Nations 2003c; United Nations 2005) . On 25 May, 2006, eight unarmed police were killed by members of F-FDTL and twenty-seven others sustained serious gunshot injuries (United Nations 2006).

These issues need to be dealt with on a number of levels, both structural and relational. The structural issues include reviewing the legislative framework for each organisation, the creation of a national security policy that will delineate the respective roles and the enactment of supporting legislation that will outline the procedure and circumstances in which military aid to the civil power will be initiated, and by whom. Ideally, all these matters would be dealt with comprehensively through the process of a review attached to a security sector reform process.

Unfortunately, several actions by the Timor-Leste Government are taking place ahead of any such review being conducted. The deployment of the military for internal security purposes, e.g., guarding of key institutions or the announcement that it would be F-FDTL that would provide security for New Years Eve 2007 serve up a confused message about the respective roles of the security organisations.

Other actions that serve to undermine the police force are the different ways in which the Timor-Leste Government has responded to recommendations of the Commission of Inquiry (CoI), depending on whether it is police or military that is being examined. The CoI recommended prosecution of sixty-eight individuals including the Minister of the Interior who had responsibility for police, the Minister for Defence, the head of the armed forces and the head of the police, as well as the further investigation of seventy more people.

Although the former Minister of the Interior, Rogerio Lobato, was prosecuted, it was very quickly made clear that the Chief of the Armed Forces, Taur Matan Ruak, had the confidence of the leadership and no prosecution of him would be entertained. The former Minister for Defence, Roque Rodrigues, is currently serving on the Presidential Security Sector Working Group. Although there has been considerable pressure put upon the United Nations from the Timor-Leste Government to have PNTL back on the streets with unreasonable haste, the PNTL is also not infrequently undermined by the Timor Leste leadership, serving to impede the establishment of an impartial and credible force.

This most recent decision to make PNTL subordinate to the F-FDTL in the very business they are constitutionally mandated for, policing, will further undermine the morale of the force and may well lead to renewed and possibly bloody turf wars between the two organisations.

Endnotes
1. The author is a PhD scholar at Centre for International Governance and Justice, Regulatory Institutions Network, Australian National University. Contact this author.
2. Minibus transport common in Timor-Leste
3. The situation has been further confused following the 11 February attacks by the deployment of Australian Federal Police who will not serve under the United Nations Police.
4. Law No. /2008 Authorizing the President of the Republic to declare a State of Siege
5. According to La’o Hamutuk seven people were killed. http://www.laohamutuk.org/Bulletin/2003/May/bulletinv4n2.html#mandate. Accessed 20 August 2007
6. The UNMIT mission was established by Security Council Resolution 1704 on 25 August 2006. The mandate provides, amongst other things, for the restoration and maintenance of public security until such time as the PNTL is reconstituted. It also requires UNMIT to assist with the further training, institutional development and strengthening of the PNTL and the Ministry of Interior. Additionally, the UN is to assist the Timor-Leste Government to conduct a comprehensive review of the security sector including the F-FDTL, the PNTL, the Ministry of Interior and the Ministry of Defence.
7. An army had initially not been thought necessary by the Timorese leadership but the experience of the immediate post ballot violence, combined with an initial lack of response from the UN to the needs and disgruntlement of Falintil in cantonment produced a change in attitude.

References
International Crisis Group (2008). Timor-Leste: Security Sector Reform, ICG: 32pp.
JSMP (2003a). " Press Release: JSMP concerned about illegal detentions in East Timor.16 January 2003."
JSMP (2003b). " Press Release : JSMP Monitors release of detainees.20 January 2003."
United Nations (2003c). Economic and Social Council. Question of the Violation of Human Rights and Fundamental Freedoms in any part of the World. Situation of Human Rights in Timor Leste. Report of the United Nations High Commissioner for Human Rights. E/CN.4/2003/37 (4 March 2003).
United Nations (2005). Economic and Social Council. Report of the United Nations High Commissioner for Human Rights on technical cooperation in hte field of human rights in Timor-Leste. E/CN.4/2005/115** (22 March 2005).
United Nations (2006). Report of the United Nations Independent Special Commission of Inquiry. Geneva.
United Nations Integrated Mission in Timor-Leste (UNMIT) and Democratic Republic of Timor-Leste (2006). Arrangement on the restoration and maintenance of public security in TImor-Leste and on assistance to the reform, restructuring and rebuilding of the Timorese National Police (PNTL) and the Ministry of Interior Supplemental to the Agreement between the United Nations and the Democratic Republic of Timor-Leste on the Status of the United Nations Integrated Mission in TImor-Leste (UNMIT).
Wilson, B. V. E. (2008). Smoke and mirrors: institutionalising fragility in the Polícia Nacional Timor Leste (draft). Democratic Governance in Timor-Leste: Reconciling the National and the Local Conference. Charles Darwin University, Darwin.