By Tea Soentoro
Network Advocacy Coordinator, NGO Forum on ADB
The Asian Development Bank failed to make a breakthrough of providing a policy that improves better access of affected people to information about program and projects that change their lives and livelihoods. This conclusion is derived from assessing the new Public Communications Policy (PCP), a result from a review that started in February 2010 and finalized with the approval of the Review? (R-) Paper by ADB Board of Directors on October 25, 2011. The new PCP? will become effective on April 2, 2012.
NGO Forum on ADB monitored this review and actively engaged in many ways. The framework of Forum?s intervention was the right to information particularly of the affected people. This framework came out from a workshop on February 10-11, 2009 hosted by Forum, GTI (Global Transparency Initiatives) and FDC (Freedom from Debt Coalition), a starter for campaign and intervention to PCP review. Moreover, a Facilitation Team composed of Forum?s network members and supported by the Secretariat, was appointed to guide the network during this review process. Community consultations were carried out in Yogyakarta (Indonesia), Siem Reap (Cambodia) and Dhulikel (Nepal). Views and experiences of the network were gathered and fed into Forum?s submissions.
The latest intervention by Forum to PCP Review was a letter on May 2011 signed by Forum?s members addressed to ADB Board of Directors. In that letter Forum expressed its disappointment about the flawed process of the PCP Review towards its end-stage (the Working Paper) and increasing power given to management, private sector and borrowing governments to decide about information disclosure.??
Four Issues Highlighted
Forum?s intervention to the PCP review focused on four main issues: (1) Better access to information by affected people; (2) pro-active disclosure of document particularly for decision-makings by affected people; (3) limited exceptions; and (4) new independent appeal mechanism.? This concluding note looks at the new PCP from those four issues and based on Forum?s recommendations (particularly the last one on the Working Paper ).??
1. Still limited access to information by affected people
The new PCP clarifies that information disclosure is through pro-active disclosure and individual requests for information (paragraph 27, p.12). This gives an impression that transparency of information is being taken place. However, if we look closer to this new PCP, many provisions show in the contrary.
Affected people and their support groups consulted by Forum were in the opinion that access to information by affected people particularly on project information was limited. Reasons for this limitation according to them were including: limited access to internet because mainly project information is available on ADB website; borrowers are reluctant to be transparent and to provide information about the project and the project document; project information is in English. Hence, views of affected people were left out in the decision-makings about the project in their places.
As a principle the new PCP states ?ADB recognizes the right of people to seek, receive and impart information and ideas about ADB-assisted activities ?? (paragraph 30, p. 12). This statement accommodates Forum?s recommendation that ADB should recognize the rights of affected people to information, and change the language of? ?? support the rights of people ?? as stated in the old PCP (paragraph 31, p.6-7) .
However, provisions of the new PCP don?t support this recognition fully as we can see below:
1.1.? ADB is not responsible for providing information to affected people
The ADB website is the primary vehicle for proactive disclosure (paragraph 27, p.12). Since affected people mostly do not have access to internet, they rely heavily on project information provided by the borrowers.? Experiences of affected people showed that lack of information about ADB financed projects in their places mainly because the borrowers were reluctant to provide the needed information to them.
The new PCP affirms that ADB is not responsible to provide information to affected people. Provisions in the new PCP state that ADB shall work closely with borrowers to ensure that information about project and program (including environmental and social issues) is provided to affected people and other interested stakeholders (paragraph 47, p. 16); ADB will assist DMC government and private sector client in developing a project or program communication strategy (paragraph 48, p.16); and the responsibility for disclosing information will rest on the borrowers and/or client (paragraph 129, p.30).?
Forum?s recommendation that ADB as well as borrowers have a similar responsibility in providing information to affected people and they should develop a communication plan or strategy jointly, is not considered.? The new PCP poses affected communities with continuing problems of lack of information.
1.2. Translation is not addressed to the needs of affected people
Translation was one of the major issues raised by affected people and their support groups during public consultations because the project information and documents are mainly in English. Therefore, they demanded that translation of project documents and other important related documents should be made and provided to them, at least in the national languages of affected people. This is essential for them to exercise their rights to information and to decision-makings.
Paragraph 112 (p.27) states that ?? ADB will undertake translation in accordance with its translation framework adapted in 2007??. Forum already gave its opinion that ADB Translation Framework 2007? is not sufficient to meet the needs of affected people, among others because there are different provisions regarding project information and policy papers for public consultations . Translation in that said document is addressed more for public consultations of policy papers rather than project information for affected people.
Forum?s recommendation to this matter was not considered in the new PCP, i.e.?? remove ?ADB Translation Framework? from the policy and provides provisions regarding translation with emphasis to translation of project documents. The new PCP also doesn?t accommodate another option recommended by Forum, i.e. to update ?ADB Translation Framework? to adjust it to the translation needs of affected people.
Furthermore, the provision on translation is addressed for public consultation, particularly for affected people (paragraph 112, point ii, p.27).? This language is not consistent with the Safeguard Policy Statement (SPS, 2009) that defines consultation with affected people as ?meaningful consultation?, not public consultations. This paragraph 112 creates a loophole because it implies that only information related to the project will be translated for affected people for the public consultation, but not project documents for meaningful consultation purposes. There is a big gap between information related to the project and project documents; between public consultation and meaningful consultation.
So, the provision on translation is not sufficient to ensure that affected people receive full information (including project documents) about projects being prepared and implemented in their places. This will hinder the exercise of rights to information and to decision-making by affected people.
1.3. Safeguard Policy Statement (SPS) and Accountability Mechanism (AM) are not included in information to affected people
Two ADB policies of ADB are important for affected people: SPS as requirements to borrowers for protection and AM for holding ADB accountable if people feel that the project affected them negatively. Paragraph 47 (p.16) about information available to affected people and other interested stakeholders doesn?t include SPS and AM that are important for affected people for their deliberation and decision-making about the project.
Affected people need to know about a possibility to file a complain if they feel that the project affects their lives as early as possible i.e. in the same time as the project is introduced to them.? Lack of information among affected people on AM was one of the major issues raised during public consultations on PCP review and also on AM Policy Review.? Many participants shared their experiences about how borrowers were reluctant to inform them about a possibility to file complaint if they are not happy with the project.
Forum?s recommendation about a provision on information about AM in the loan agreement, was ignored, as well as the need of affected people to be informed about AM as early as possible. The provision Information about AM on paragraph 91 (p. 22) is about disclosure of information produced under AM Policy.?
Information about projects and programs per paragraph 47 (p.16) is not sufficient without information about SPS that describes obligations of the borrowers and about AM that describes opportunity to file their problems with the project. Hence, their rights to information and decision-making are not fully recognized.
2. Pro-active disclosure depends heavily on borrowers view and interests
Though there are provisions in the pro-active disclosure details that documents for Board information and decision are simultaneously disclose to public, but this depends on the borrower?s consents. If we look closer to the timing of the list of pro-active disclosure document, mostly they are posted after Board consideration to the project or program (see Attachment 1). This is problematic because it hinders the exercise of affected people to the rights to information and the right to make decision.
2.1. Country ownership = government ownership, not affected people ownership
The new PCP affirms the country ownership of activities it supports in its DMCs (Developing Member Countries).? It states that ?? before disclosing certain documents, the views of DMC shall be considered with regard to the contents and timing of their disclosure ?? (paragraph 31, p.12). Similarly is in paragraph 35 (p.14) about disclosure details that ?? following documents shall be posted on the ADB website according to the time period specified, after consultation with the respective borrowers or clients as appropriate?? The list of documents for pro-active disclosure under paragraph 36 to 65 (p.14-19) contains requirements of borrowers? consents for disclosure.
Country ownership of a project in its DMCs is understood by ADB and reflected in the new PCP as ownership by the governments and therefore they are equipped with an authority to decide to information disclosure. Aside of showing ignorance to the fact that mostly the borrowing country governments are well known as operate in non or less transparent manner and on the other hand affected people suffer under this lack of information about the project in their places, this perspective of country ownership contradicts the statement to recognize people rights to information (paragraph 30, p.12).? Country ownership should imply an ownership by people through opportunities to exercise their rights to information and to decision-making. Paragraph 31 (p.12) about country ownership doesn?t provide this opportunity for affected people.
2.2. Rights of people to see, receive and impart information are not ensured and left? in the hand of the borrower?s interests.
Forum recommended disclosing safeguard documents, RRP (Report and Recommendations of the President), PAM? (Project Administration Manual) for both public and private sector projects at the same time as those documents are circulated to the Board. Those documents are key for affected people for their deliberations on a project in their places, and provide opportunities to give their views on the proposed project before the approval by ADB Board of Directors.
Paragraph 58 (p.18) on RRP and other supporting documents to RRP such as PAM will be posted on ADB website in the same time as they are circulated to the Board, only if the respective country of the project proposed agrees.? Similar provisions are for project safeguard documents i.e. on resettlement (paragraph 52, p.17), indigenous peoples (paragraph 53, p.17).? Documents on Country Partnership Strategies (CPS) and Regional Cooperation Strategies (RCSs) in paragraph 38 (p.14) are treated the same. Moreover, document of draft legal agreement (paragraph 59, p.18) can be only disclosed upon request if the borrowers consent.
Those paragraphs limit access of affected people to the Board decision-makings about the project.? This right to the decision-making can only be exercised if affected people are informed.
This behavior of limiting access of affected people to information and decision making also contradicts paragraph 30 (p.12)? that states ?? ADB recognizes the right of people to seek, receive, and impart information and ideas about ADB-assisted activities. ADB shall provide information in a timely manner, clear and relevant manner??.? Timely manner in the perspective of affected people is to be informed of any proposed plan before its approval ?be it by their government or private sector- that will influence and affect their lives.
2.3. Private sector is ensured to be less transparent
Those paragraphs mentioned before are in regard to sovereign (private sector) project. Provision for documents of non-sovereign (private sector) projects are arranged differently i.e. disclosed only upon its approval and in an abbreviated version. Furthermore, this abbreviated version will exclude confidential business information and the assessment of project or transaction risk.
Hence, the new PCP ensures private sector for being less transparent and outweighs protection of private sector?s interest. This is a clear ignorance to the fact that it is more difficult to obtain information about private sector projects that are mostly well known as ruthless in their operations.? Again, the rights of affected to people to receive information and to participate in the decision-makings about any projects or development in their places, are neglected.?
2.4.? Financial Intermediaries is not a subject for disclosure
Paragraph 34 (p.13) states that ?? in the event of conflict between disclosure provisions (but not other provisions) of PCP and any other Board-approved policy, the disclosure provisions of PCP shall prevail??.?
Forum recommended provisions in regard to Financial Intermediaries (FI) to make PCP in-line with safeguard requirements about FI projects. The new PCP in regard to provisions about pro-active disclosure details (paragraph 35 to 93 in page 14-23) excludes information on FI. This is also non-consistent with the SPS that defines requirements about FI sub projects.
Referring to paragraph 34, it means that any request for information about FI sub projects can be denied because there is no provision in the new PCP available for this financing mechanism. If we use provisions about FI in SPS to argue, this can be also denied with a reason that disclosure provisions in the new PCP prevail.
2.5. Operations Manuals (OM) are not subject to public consultations in the drafting process
OMs are? instructions to management to operationalize the policy. Therefore, OM is important document that determines the implementation of a program or project. As we know that many problems face by affected people are triggered by failure in implementation, hence the manual for staff on project or program implementation should be also subject to public consultations. From the experiences in monitoring the Safeguard Policy Update,? the OM of SPS is problematic and contains many vague languages though many input were submitted by Forum to improve it.? Based on that experience Forum is in the opinion that OMs in its drafting process should be provided to public and a subject to public consultations.?
In the new PCP paragraph 72 (p. 20) OMs are not included in the policies and strategies subject to public consultation. According to paragraph 75 (p.14), the OMs are disclosed upon its issuance to staff.
3. On exception
Basically the essence of the exception list in new PCP (paragraph 97, p. 23-25) doesn?t change. Forum?s repeated comments and recommendations to shorten the list of exception and to narrow definitions of business confidentiality were ignored. The review only made some headings on the exception list to group the provisions. Furthermore, it gives some clarifications about Board of Directors proceeding (in footnote 29), new languages to explain the internal and external audit report (point xii, p. 205, and new language to explain about the auditing standard in US and other donor countries (footnote 33 of point xii, p. 20).? Moreover, paragraph 97, point xii (p.25) still places audit report under the exclusion list.
PDAC (Public Disclosure Advisory Committee) can consider request to disclose information included in the exception list if public interest in disclosing the information outweigh the harm that may be caused by disclosure. However, it will require the approval of the President (paragraph 99, p.25). ADB President has the prerogative right to decide about this disclosure and IAP (Independent Appeals Panel) as the second tier of appeals has no authority to consider appeals made by the President (paragraph 128, p.30).
When ADB?s Disclosure Unit was asked whether there is a guideline to determine about public interest override, the answer was ?? there is no such guideline in the world, so ADB doesn?t have it ??.? The only possibility to ask for disclosure of information under exception list, according to this Disclosure Unit, is to ??go directly to the Board of Directors, they will decide on this.?
4.? Powerless appeals mechanism
Forum recommended an independent appeal body to consider appeals from decisions of PDAC (Public Disclosure Advisory Committee). PDAC was the principle appeals mechanism available to the public. However, it lacks independence given its composition.
Forum?s recommendation was considered, and the new PCP adopts two stages appeals mechanism (paragraph 136, p.31):? Public Disclosure Advisory Committee (PDAC) and Independent Appeals Panel (IAP). PDAC is composed of ADB?s management, and reports directly to the President (paragraph 127, p.30).? IAP is composed of three external experts, who are nominated by the President and approved by the Board (paragraph 128, p. 30 and footnote 38).?
PDAC can consider a request for disclosure of a document under the exclusion list based on the public interest override set out in paragraph 99 (p.25) only with approval by the Board for Board record and the President for other documents.??
IAP is the second stage of appeals, and has the authority to uphold or reverse the relevant decisions of the PDAC. However, paragraph 139 (p.32) states that IAP has no authority to consider appeals against decisions taken by the Board or the President in regard to exception list and public interest override set out in paragraph 99. Hence, IAP is powerless because it doesn?t cover decisions made by the ADB President.
Conclusion
The PCP review process by holding public consultations and getting written public comments, was used by ADB for its own advantage to justify its new PCP that contains stronger provisions to protect borrowers? interests and particularly ADB?s private sector operations. On the other hand the review process ignored many input and recommendations from those public consultations and written submissions to make public and affected people particularly have better access to information and project document.? The result of this kind of process as reflected in the new PCP:? people?s access to information is not improved, hence, they are hindered to exercise their rights to decision makings about the project in their places that influence and affected their lives and livelihood.
Referring to Forum?s main issues of intervention and campaign the conclusion:
(1)?Access to information by affected people is not improved. The new PCP will pose affected people with continuing problems of lack of information particularly on project in their places. This limitation is triggered by (i) provisions that the responsibility for providing information is not at ADB but the borrowers; (ii) provisions on translation are not sufficient to ensure that affected people received full information about the project prepared and implemented in their places; (iii) SPS and AM Policy are not obliged to be included in the Information about projects and programs, and therefore, affected people are not informed about obligations of the borrowers and opportunity to file their problems with the project.
(2)?pro-active disclosure of document particularly for decision-makings by affected people is heavily depended on the interests of the borrowers. Furthermore, private sector is ensured to be less transparent in providing project information. Thus, access of affected people to the Board decision makings about the project before approval that will influence and affect their lives, is still limited.
(3)?the essence of exception list doesn?t change. ADB President has a prerogative right to decide about a disclosure of information under exception. This prerogative right is beyond the authority of appeal mechanisms.
(4)?The new appeals mechanism (IAP) is powerless because it cannot touch the decision made by ADB President.
In general PCP review failed to make a breakthrough in providing a policy that would be transparent and accountable to affected people. In the contrary, the new PCP affirms the power of ADB, private sector and borrowing country governments to operate beyond the rights of affected people and public on information. This poses challenges to affected people as it hinders the exercise of rights to information and to decision-making by affected people about projects in their places.
?
Attachment 1:
List of document in W-Paper PCP under various provisions for pro-active disclosure
Abbreviation
CPS?= Country Partnership Strategy
CSS?= Country Safeguard System
DEC?= Development Effectiveness Committee
DMC?= Developing Member Country
EIA?= Environmental Impact Assessment
IED?= Independent Evaluation Department
IEE?= Initial Environmental Evaluation
IP?= Indigenous People
IPSA?= Initial Poverty and Social Analysis
IR?= Involuntary Resettlement
MFF?= Multitranche Financing Facility
PAM?= Project Administration Manual
PDS?= Project Data Sheet
PID?= Project Information Document
PPTA?= Project Preparatory Technical Assistance
RCS?= Regional Cooperation Strategy
RRP?= Report and Recommendations of the President
TA?= Technical Assistance
1. Simultaneously disclosed with Board circulation but subject to consent of concerned countries:
??CPSs, interim CPS, and RCSs (paragraph 38, p.14); key supporting documents that are referred to in CPS and RCS (paragraph 39, p.14); other thematic and sector analysis and assessment used to prepare CPS and RCS including any update (paragraph 39, p.14);??
??RRP for public sector project, if DMC consents; otherwise upon approval by the Board (paragraph 60, p.11). Supporting document to this RRP including the PAM, disclosed as a stand alone document and follow the disclosure of RRP
??Information of officially co-financing project such as major terms and conditions in its summary in respective TA reports or RRPs? (paragraph 67, p.12)
2.? Disclose upon? circulation to the Board:
??The chair?s summary of each Board discussion on CPS, interim CPS and RCS and its translation (paragraph 40, p. 14).
??Country Operation Business Plan, Regional Cooperation Business Plan and related document (paragraph 41, p.15)
??Project, program, and TA completion reports of public sector; meanwhile for private sector called an extended annual review report only in its abbreviated form excluding confidential business information (paragraph 65, p.19)
??All Independent Evaluation Report for public sector projects, except IED annual evaluation report upon discussion with Board?s DEC; meanwhile for private sector project in its redacted version excluding confidential business information (paragraph 67, p.19)
??Chair?s summary of DEC meeting on evaluation reports, the response by management, and if any, IED comments on the management response, if any (paragraph 68, p.19)
3. Disclose upon approval by or submission to Board endorsed by the borrowers:
??The final EIA or IEE (paragraph 51, point iii, p.16)
??A new or updated EIA or IEE, and a corrective action plan, if any, prepared during project implementation (paragraph 51, point iv, p.16)
??Environmental monitoring reports (paragraph 51, point v, p.17)
?? A draft of resettlement plan and/or resettlement framework (paragraph 52, point I, p. 17)
??The final resettlement plan (paragraph 52, point ii, p. 17)
??a new or updated resettlement plan and a corrective action plan, if any, prepared during project implementation (paragraph 52,? point iii, p. 17)
??the resettlement monitoring reports (paragraph 52, point iv, p.17)
??a draft of indigenous peoples plan (IPP) and/or indigenous peoples planning framework (paragraph 53, point I, p. 17)
??the final IPP (paragraph 53, point ii, p. 17)
??a new or updated IPP and a corrective action plan, if any, prepared during implementation (paragraph 53, point iii, p.17)
??the indigenous peoples monitoring reports (paragraph 53, point iv, p.17)
??Acceptability assessments at the project level of the Country Safeguard System (paragraph 55, p. 17)?
??TAs upon approval by relevant authority (paragraph 57, p.17-18)? ? project preparatory TA up to 1.5 million USD appended to concept paper (footnote 14 to this paragraph)
??Final consultant report on TA (paragraph 57, p.17-18) ? there is a possibility of redaction or withholding of the report and based on the exception list?
??RRP for private sector project in its abbreviated version, excluding confidential business information and ADB?s assessment of project or transaction risk? (paragraph 58, p.18).?
??Major changes in the project scope and implementation arrangements for public sector projects; for private sector project only its abbreviated version excluding confidential business information (paragraph 63, p.18)
??Progress report on tranches releases of policy-based loan and grants? (paragraph 64, p.19)
??IPSA (Initial Poverty and Social Analysis) for private sector project upon completion of credit approval process (paragraph 56, p. 17)
4. Disclose before Board approval or consideration:
??Initial PDS for a public sector project or program, and for the first tranche of a multi-tranche financing facility and for each subsequent tranche (paragraph 43, p.15).
??Initial PDS for private sector no later than 30 days before Board consideration; but for environment category A project the PDS be posted on ADB website at least 120 days before Board consideration? (paragraph 45, p.15)
??Draft EIA report for project category A ?at least 120 days before Board approval (paragraph 51, point i, p.16)
??IPSA (Initial Poverty and Social Analysis) for public sector upon approval of the project or program concept paper (paragraph 56, p. 17)
5. Disclose after effective date of its signing:
??Legal agreements of public sector projects (paragraph 59, p.18)
??Any amendment of legal agreement of private sector project within 2 weeks of its effectiveness (paragraph 59, p.18)
6. Disclose upon request:
??Co-financing agreements for such official co-financing including project-specific co financing agreements, framework agreements and trust fund agreements? between ADB and any bilateral or multilateral co-financiers (paragraph 69, p.19)
7. Not for disclosure:
??Legal agreement of? private sector projects, and its amendment if any, including commercial co-financing agreements (footnote 16 to paragraph 59, p.18 on Legal Agreement)
Filed under: IFTI Watch
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