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‘Out of Civil Disorder Towards the Challenges of Well-being’
HAK Association Human Rights Situation 2008
Contents
1. Human Rights during the State of Siege and State of EmergencyConclusion and Recommendations
2. Policing
3. Right to Demonstrate
4. Women’s Human Rights
5. Right to Justice
6. Accountability for the Perpetrators of the 2006 Crisis
7. Prison Services
8. Freedom of Religion
9. Rights of Victims of Past Human Rights Violations
10. Economic, Social and Cultural Rights
Around the world people commemorated 10 December 2008 as Human Rights Day, for the 60th time. Timor-Leste, as a member of the international community, was also preoccupied with commemoration. In the capital, Dili, we attended the commemoration ceremony in the National Parliament which included a human rights award, the Provedor for Human Rights and Justice (PDHJ) organized a human rights exhibition in the “old market” hall, and the international agencies present in Timor-Leste, not wanting to miss the opportunity, commemorated the day with an art exhibit in the Casa Europa.
Unfortunately, these commemorative events for this important day concentrated on Dili. But even if the celebrations were only in Dili, Timor-Leste does indeed merit celebration; in addition to its moral obligations as the 191st member of the United Nations (UN), Timor-Leste has ratified seven principle human rights treaties: (1) International Covenant on Civil and Political Rights, (2) International Covenant on Economic, Social and Cultural Rights, (3) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), (4) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (5) International Convention on the Elimination of All Forms of Racial Discrimination, (6) Convention on the Rights of the Child, and the (7) International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
With all the festivities, can we consider the human rights situation in Timor-Leste as sufficiently good?
We must acknowledge that according to international standards, Timor-Leste is recognized as one of the progressive countries in relation to human rights. From a legislative perspective, especially constitutionally, Timor-Leste’s constitution is recognized as quite advanced from a human rights perspective. Almost half of the contents of our constitution relates to the spirit and values of human rights. Early on our government established several governmental bodies whose missions promote and protect human rights, such as the Provedor’s Office on Human Rights and Justice (PDHJ). Commission A of the National Parliament focuses on human rights. The Secretariat of the State for the Promotion of Gender Equality (SEPI) in the Cabinet of the Prime Minister is among the several departments which work on matters related to specific rights. There are also international agencies which have come to work in Timor-Leste with a human rights mission, such as the Human Rights Unit of UNMIT (United Nations Integrated Mission in Timor-Leste), UNICEF (children’s rights), UNIFEM (women’s rights), etc. In addition, some of our leaders have received international human rights awards, such as Sr. Jose Ramos-Horta awarded the Nobel Peace Prize in 1996, Sr. Fernando “Lasama” Araujo the Reebok Human Rights Award in 1993, Sr. Xanana Gusmao the Sakharov Prize in 1999, and Sr. Aniceto Guterres Lopes the Magsaysay Prize in 2003.
Can the existing legislation, many institutions and these human rights awards guarantee that human rights are protected and promoted in Timor-Leste? In particular, what is our reality in 2008?
However, we don’t view human rights as something static that you measure attainment based only on superficial conditions attained by Timor-Leste (legislation, institutions and prizes). Human rights are dynamic and thus require constant effort, not a sense of satisfaction resting on the laurels of past accomplishments.
As an organization that has been working for the human rights of Timorese people since 1996, and from our experience and work during 2008, we highlight aspects of the human rights situation that require public attention - especially by the leaders of the sovereign organs of the government (due to the obligations of the state as signatories to international treaties).
In general, we recognize that compared to 2007, the situation in 2008 has improved. The large issues that existed during the 2006-2007 security crisis have been resolved, such as the problem of the “armed group of Major Alfredo,” the problem of the “Petitioners group from the F-FDTL” (Falintil-Defense Force of Timor-Leste), and the internally displaced. The AMP government succeeded in extracting the problems from the public eye in Dili by applying a big budget policy. At the same time, the AMP used big budget governance to fulfill its obligations for the rights of the elderly, veterans, disabled and the victims of the 2006-2007 crises.
However, we don’t view human rights as something static that you measure attainment based only on superficial conditions attained by Timor-Leste (legislation, institutions and prizes). Human rights are dynamic and thus require constant effort, not a sense of satisfaction resting on the laurels of past accomplishments. So, in addition to using this opportunity to recognize the achievements of the government and state of Timor-Leste, we have an obligation to articulate our concerns and highlight the weaknesses we have identified during our work throughout 2008. We hope that these concerns can be a lesson for all to improve and correct the human rights situation for the future.
During 2008, HAK registered the following human rights concerns:
1. Human Rights during the State of Siege and State of Emergency
Although everyone recognizes that the Joint F-FDTL and PNTL (National Police of Timor-Leste) Operation during the State of Siege (11 February-23 July 2008) generally succeeded in restoring security and stability, however, we registered that several human rights violations occurred. The violations stem from abuse of power by police officers and military soldiers carried out against civilians such as illegal arrest (not following legal procedures), excessive use of force in handling suspects, and mistreatment (arbitrarily punishing people when apprehended) of civilians or suspects, destroying or theft of goods and belongings, and deadly shooting of people.
During this period, HAK registered 18 people victimized by actions of the Joint Command throughout the State of Siege. Of these victims, HAK facilitated 10 people to submit their case to the competent authorities (Joint Command, PDHJ, and Office of the Prosecutor General). Unfortunately up to December 2008, none of the cases has been addressed through court proceedings. The promise of the Prime Minister (TP, 5/3/08) and the Commander of the Joint Command (TP, 2/6/08) that they will process the cases has not been realized. The same is true for the cases in Ermera District, where members of the Joint Operation are accused of abuse of power against 12 people. PNTL Commander in Ermera, Sub-inspector Mateus Mendes told HAK staff in June 2008 the case has not been investigated because he has not yet received the official order from the Commander of the Joint Operation. According to the Provedor, Mr. Sebastiao Ximenes the 30 cases PDHJ is investigating will also require more time before they are concluded (TP, 8/12/2008).
These facts demonstrate that the mechanisms established by the government to guarantee accountability for human rights do not yet function effectively - especially prosecuting criminal actions committed by members of state security apparatus (police and military). This reality is a strong indication of violations of human rights, because the state entities have abandoned their obligations when it comes to criminal activity. This situation has the potential to deepen the culture of impunity that already exists in Timorese society.
The efforts of the AMP government to reform the security institutions, especially PNTL have generally progressed with some positive results. For example, members of the PNTL no longer act out of political party interests or defend interest groups. Consequently, attention to the community is improving. We are proud of the disciplinary measures and penalty the PNTL as an institution took against District Commander in Baucau, Sub-inspecter Aderito da Costa Ximenes Neto (October 2008). This demonstrates that though PNTL as an institution faces several difficulties, with the assistance of UNPOL they are now trying to introduce a culture of following the law within the institution.
However, at the same time, we have registered several complaints by police officers about accusations of human rights violations against them which were the result of situations beyond their control. During training for police, organized by HAK in eight districts in 2008, members of the Police Investigative Unit complained that in current circumstances they frequently lack appropriate equipment and resources which results in their violating the rights of suspects. For example, if they detain a suspect in a rural area and are traveling with Tata cars that are not properly maintained, and the car breaks down on the way, it impacts on their ability to comply with the 72 hour limit as regulated in the Penal Process Code. If the police detain a suspect for more than 72 hours, they can be accused of human rights abuse. Additionally, the police often do not have funds to buy food for suspects when transporting detainees to the district court (Baucau, Dili, Suai & Oecusse). Indeed, this reality demonstrates that the big budget policy of the AMP Government does not yet correspond to the necessities required for effective functioning of the state security apparatus, as required to guarantee the human rights of the population.
HAK registered police action against the peaceful demonstration by university students on 7-9 July 2008 protesting the National Parliament’s (PN) decision to purchase luxury cars for Members of Parliament as a violation of human rights. Because it is a human right of citizens to peacefully demonstrate, they merit security by members of the police force, not the contrary¡ªthat those who govern send the police to impede their rights¡ªespecially not with the excessive force used to arrest 51 of the demonstrators. The Law No. 1/2006 on demonstrations which stipulates that they be 100 meters from public buildings does not conform to the spirit of Article 42 of the Constitution of the Democratic Republic of Timor-Leste (RDTL) because it characterizes demonstrations as cultural not political expressions which the demonstrators must communicate to the political leaders. In addition, the regulations are not realistic given the circumstances of Dili, a small city. The regulations merit revision from the legislators, as part of the state’s obligation under the International Covenant on Civil and Political Rights. At the same time, the substance of the demonstration deserves the proper attention of those governing, as it relates directly to economic rights of the people. Indeed, the policy of spending funds on cars is not consistent with the state’s obligation to guarantee economic, social and cultural rights.
Local authorities and government agents (including police) cannot yet provide or guarantee security or justice for women.
We observed very dynamic efforts by the government or state during 2008 to fulfill its CEDAW obligations. We accompanied the many activities SEPI and other institutions carried out to propagate the principle of gender equality. For example, the legislative process on property rights for women carried out by the Justice Ministry’s Department of Land and Property, SEPI and USAID and the activities in the campaign “16 Days against Violence against Women”, etc. Unfortunately these efforts do not yet have a direct impact in guaranteeing women’s rights - especially for women in poor economic circumstances or for rural women. Many of the activities only “fly above” or are elitist, and do not relate to the real needs. Ironically, when it commemorated the international day for “Rural Women” (15 October), the government organized a concert in Dili and invited an Indonesia band “Tri Macam” (the commemoration named for Rural Women, but women in rural areas didn’t know or have any feelings about it).
In HAK’s human rights training for local authorities, carried out in three districts (Dili, Viqueque and Covalima) in 2008, we encountered the lamentation that women are very vulnerable from domestic and sexual violence. Local authorities and government agents (including police) cannot yet provide or guarantee security or justice for women. When a case of domestic or sexual violence arises and a woman is victimized, they are doubly victimized by the process of addressing the problem because the processes are not just nor in the interest of the woman. Local authorities who resolve issues related to women through customary practice, present solutions that favor the men or males in the woman’s family (uncle, older brother and younger brother).
From January through July 2008, of the 49 cases women brought to the police only seven were registered with the courts and none have been tried; six are still under investigation, and the rest were resolved by the family (STL, 29/7/08). Only 26.5% of the cases were processed (and not yet with any result), and the rest (73.5%) were resolved through traditional mechanisms that are dominated by patriarchal perspectives (male interests). This reality can be considered a violation of human rights, when our government does not use effective means (not just artificial measures) to stop “bad customs” practiced by authorities.
In a democracy the judiciary has an important role in the guarantee of human rights. Because an independent and impartial judiciary - especially if it is free from political interference - can be an instrument to defend the human rights of the population and for justice and truth, it is a foundation for stability and sustainable development. According to HAK’s observations and experience providing legal assistance in 2008, the current government has made efforts to improve and develop the capacity of the judiciary. Beside the intensive training program for court officials and an increased budget for the judiciary, procuracy and district courts, the prosecutor and judges, though limited in numbers (13 Timorese prosecutors and 13 Timorese judges), do indeed make an effort to prosecute the pending cases. As of July 2008 there are 4700 total cases pending (Timor-Leste Human Rights Development Report, UNMIT 2008).
Although the facilities are not yet sufficient to support their work, such as a lack of desks and place to reside in the districts, the judicial authorities fulfill their obligations to attend to the cases from the police and court schedule. However, according to HAK’s observations, despite the development taking place in the judiciary, it has not yet increased the population’s confidence in the organ. Many people still doubt that the court can guarantee sufficient defense of their rights and provide a solution to their legal problems. The population still has doubts about the judiciary because they don’t see any significant progress relating to the “perpetrators of the 2006 crisis”, nor in the nearly 35 corruption cases (TP 27/3/08) registered by the General Prosecutors’ office, nor in the 23 cases already investigated by PDHJ.
6. Accountability for the Perpetrators of the 2006 Crisis
According to HAK’s observations, during 2008 the process to guarantee accountability by the “perpetrators of the 2006 Crisis” has not progressed as the public expected. Beside an explanation of what happened and the motivations behind the 2006 Crisis, the population followed the judicial process and expected the state to hold the suspects accountable before a court of law. Unfortunately, what happened in 2008 has yet to remove the public’s reservations regarding our judicial institutions. In reality, during 2008 the trials of the suspects of the 2006 Crisis proceeded only through “trial by the press” (condemning one another via the media), and trials by appropriate measures through the court system (investigations and proceedings) did not advance and give the impression of “political manipulation”. For example at the beginning of 2008, there was a polemic in the press about four suspects from F-FDTL sentenced by the Dili District Court from ten to twelve years on 29 November 2007, who had not yet begun to serve their sentences. According to the attorney of the four convicts, the reason was that they were waiting for the appeals process to proceed in the Court of Appeal. In reality there was no appeal, so on 15 January 2008 the Court of Appeal declared that they would not accept the attorneys’ petition because it was late. According to law, the prosecutor must automatically put the four convicts in prison. However this did not happen, and when the Joint Operation started, the media reported that one or two of the convicts took part in its activities. In response to the media attention and public criticism, the Minister of Justice claimed that they were incarcerated in the military prison at the Headquarters of the F-FDTL.
The trial of the suspects in the case of the assault on the residence of the F-FDTL Commander, Brigadier General Taur Matan Ruak on 24-25 May 2006 is similar. According to the report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, the suspects in the case include members of the PNTL as well as the former Parliamentarian Mr. Leandro Isaac. However, in 2008 the court only put Deputy Inspector Abilio Mesquita “Mausoko” and three of his colleague from the PNTL on trial. There were no legal proceedings against Mr. Leandro Isaac because in the previous year the Prosecutor archived the case along with that of Mr. Mari Alkatiri (former Prime Minister) and Mr. Paulo Martins (former General Commander of the PNTL) due to insufficient evidence. On 13 March 2008, the Dili District Court released the four suspects (Abilio Mausoko et al.) who had faced potential sentences of 6 months to 3 years. The court declared the suspects were innocent in the homicide they were accused of.
We suspect political manipulation in the trials of other suspects, for example Vicente da Conceic?o alias Railos’ case. The prosecutor accused Railos and Leandro Lobato of homicide in a shooting at Tasitoli on 24-25 May 2006. On 31 November 2007 the two were placed in preventative detention in the Becora Prison. However, on 28 July 2008 Railos was allowed by the government to travel to Surabaya, Indonesia to obtain treatment for a medical condition that could not be treated in the Dili Hospital. When he returned from Indonesia on 4 October 2008, the Dili District Court placed him under house arrest (TIR or Proof of Identity and Residence). Thus he took up residence in his home in Liquica while waiting for his next court date, planned for 12 January 2009. Our analysis is that there has not been significant progress in the case due to political trade-offs. In another case, Mr. Rog¨¦rio Lobato, convicted of illegally distributing guns to civilians in relation to the 2006 crisis, received a seven and a half year sentence. He only served one month in prison before receiving authorization from the government to obtain medical treatment in Malaysia. Although he did not follow the court’s ruling to return to Timor-Leste after his treatment, he was granted executive clemency by Presidential Decree on 20 May 2008.
Because of the facts cited above, we do not have confidence in the investigative process related to Colonel Lere Anan Timur and Lieutenant Colonel Falur Rate Laek summoned by the prosecutor in the last week of November 2008 to make their depositions, along with Brigadier General Taur Matan Ruak on 10 December 2008. It is difficult for the public to have confidence that the suspects will take responsibility for their actions of illegal weapons distribution from the F-FDTL to former members of Falintil (For?a Armadas da Liberta??o Nacional de Timor-Leste/Armed Forces for the National Liberation of Timor-Leste, first army and former guerilla movement) that resulted in an escalation of panic by the population in Dili and created tens of thousands of displaced people. The incident at the old market when a former Falintil member with the alias of “Oan-Kiak” shot and wounded Father Mouzinho (25/5/2006) is similar, he was released from prison before any trial took place. He is free and the case against him dropped. The lack of legal repercussions reduces the state’s ability to assure people that this will not happen again.
That is why the ongoing judicial processes for the suspects of the 2006 Crisis give the appearance of political theatre. The court is not functioning independently and impartially to guarantee the population’s human rights, justice and truth, but appears to again be an instrument of those with political power. Our judiciary is weak not only due to lack of human resources, but also because of the lack of political will by our leaders to develop it.
According to us, if the judiciary is dominated by political manipulation or interference by politicians it will be very difficult to realize the campaign and promise of our leaders to combat “the terrible illness of modern governance” (corruption, collusion and nepotism). We measure these doubts by the lack of significant policy to guarantee judicial proceedings in the case accusing Mr. Longuinhos Monteiro of abuse of power. As the Prosecutor-General of the country Mr. Longuinhos Monteiro has the duty as representative of the state to combat all criminal acts. However, unfortunately there are 4700 pending cases, plus the cases from the 2006 Crisis, around 35 corruption cases, and the case of 11 February 2008 that could not be processed in due time because the person responsible to bring them to trial has a conflict of interest as he is also a possible defendant before the court.
The case accusing Mr. Longuinhos Monteiro of abuse of power was brought to the court by HAK in 2005. Since then the case has not been well attended to because of political pressure, for example the judge assigned to it has been changed many times. Finally in November 2008, there was some progress; the court heard the witnesses of the victim and the accused.
As a country with a big commitment to human rights, we must assure that even those who are convicted of crimes enjoy their rights. As well as the constitutional guarantee of their rights, the state has ratified several relevant human rights conventions, namely the International Covenant on Civil and Political Rights and the Convention Against Torture. Throughout 2008, HAK continued monitoring the prisons to guarantee prisoners’ rights. Based on our observations from four staff visits to the prisons, the human rights of the 179 prisoners in the Becora Prison and 25 prisoners in Gleno, including four women, are generally good. We did not discover any major problems for the prisoners such as torture or mistreatment. Medical care and food provided to the prisoners is adequate; they receive regular assistance from the Ministry of Social Solidarity for their daily needs such as soap, tooth paste and brushes, and sanitary products for the women. The Justice Ministry has begun more systematic formation for prisoners to prepare them for their return to normal community life in the future, including training for tailors, farming, sports, regular religious support from Catholic priests and access to information (though televised news).
There are some problems at the Gleno Prison regarding water and transportation. The prison guards complained that in the dry season there is not sufficient water because some wells go dry and then the population destroys the water pipes to the prison to gain access water. Due to the lack of water, all the toilets in the prison become dirty. Regarding transportation, the guards complained that because they only have one vehicle it is difficult to attend to all their transportation requirements. The prison guards also demonstrated dissatisfaction with their uniforms and equipment distributed to them with the emblem of the Indonesian National Army (TNI).
From a human rights perspective, we are concerned about the high number of prisoners detained under the Pre-sentencing Statute. According to the data, 101 of 179 inmates in the Becora Prison are incarcerated under the Pre-sentencing Statute, including the suspects in the 11 February 2008 “assassination attempt” and eight juveniles. Of the remaining prisoners held under the Pre-sentencing Statute, twenty people have been detained less than six months or are having their cases investigated, 51 people have been incarcerated more than six months, thirteen have been detained more than one and a half years, including one youth who has been in custody more then two years and six months.
These facts reveal that the State of Timor-Leste violates the human rights of its prisoners (right to freedom and to a fast and fair trial). HAK’s observation revealed that the number high number of inmates detained under the Pre-sentencing statute is related to the weak functioning of the court system but especially due to the poor legal assistance of the suspects’ attorneys or public defenders. The lawyers do not put effort into serving their clients to secure their rights, and they often just abandon their clients. Some of the suspects never met their attorney or had a visit from their lawyer. There is a young suspect, who when he entered prison was an underage child and has been detained for more than two years and six months. There are suspects that have been before the court seven times but have not yet had their status revised from pre-sentence detention. We found some cases where the attorney, as well as abandoning their client, exploited them. For example, an attorney requested money for the client and promised to free him, but really did nothing.
The law on private attorneys passed by the National Parliament in 2008 has yet to benefit the community, especially for suspects, to obtain legal representation that is fair and effective. At the same time, the effort of the Justice Ministry to improve the work of the Public Defender’s office has not yet yielded significant benefit to poor or powerless people who deserve legal representation from that institution.
In 2008, the people observed that the government began funding religious institutions to support their work and the assistance they provide to the population. The program can be considered part of the nation’s obligation to help develop religious life in Timor-Leste, which can also benefit citizens by raising their conscience and responsibility. If we reflect on our experience during the occupation Suharto Regime, HAK is concerned that the funding that the government gave to the religious institutions is not transparent and has the potential to become an instrument to “control” the religious elite to support the leadership in power which violates human rights.
From information published in the press, only the Catholic Church Dili Diocese returned the funding that the government distributed to religious institutions (TP, 18/6/2008). On the other hand, HAK staff heard concerns from representatives of the three major religions who questioned the transparency in the distribution of the funds. Religious representatives criticized the mechanism and the intended use of the money, and certainly about accountability, because from their perspective the money is only used for the interest of some groups or especially by the elite of the religious institutions.
From HAK’s perspective, the distribution of government funds to religious institutions succeeded in distracting the public’s attention, and certainly the government from a problem important to religious freedom. For four years (2004-2008), HAK staff has received information and complaints from some of the population involved in new religious groups (Vis?o Crist?o or Christian Vision) about unjust treatment or discrimination by the authorities (community and government). For example, in 2004 we received a complaint about two missionaries who were victims of violence in Manatuto District, in 2006 we received information about threats by some people against the same religious group in Memo, Maliana District, and there was a nearly identical incident in Ainaro in 2007. That same year a member of Christian Vision informed HAK that the leaders of the major religions impede the work of their missionaries in Liquica and in Same. In 2008 we received a case about discriminative police treatment of a small religious group in Aileu District. Their attorney complained that when the small religious congregation was threatened by some groups in the community, the police did not follow-up with those who had committed the crime but rather closed or sealed off the church.
A similar case to the one in Aileu just occurred in Manufahi on 17 December 2008. One neighborhood chief there impeded the Christmas celebration of a Protestant religious community, and later unknown persons destroyed the place they had prepared for the celebration so that the Protestant community was forced to move the celebration to another location. At the time, the police tried to resolve the problem with mediation, and did not press charges against the people suspected of criminal behavior (TP, 24/12/08).
From HAK’s perspective, although it is not yet a major problem, but because there have been incidents in several places we are very concerned about religious freedom. Apart from the state abandoning or discriminating against some groups of citizens that live in fear and amongst threats, the situation is also a violation of the RDTL constitution (articles 12 and 45) and does not fulfill the state’s obligations according to the International Covenant on Civil and Political Rights that Timor-Leste has already ratified.
9. Rights of Victims of Past Human Rights Violations
The political and security crisis that arose in 2006 can be seen as a repetition of past problems (1975, 1999)--violent political rivalry and elite power struggles. That is why HAK believes that to resolve the problems of our past, the state, besides guaranteeing the rights of the victims to justice, truth and reparations, must also take measures that have the effect of deterring people from repeating such acts in the future.
As a post conflict country, just emerging from a long, brutal military occupation, we have inherited many problems from our past. Whether we like it or not, in the process of developing our country and moving forward, we must pay attention to and take appropriate measures to resolve the problems our past. We have inherited the human rights violations from foreign occupations (Indonesian, Japanese and Portuguese). HAK believes that if these problems are not justly addressed, it will impede sustainable development for our future. For example, the political and security crisis that arose in 2006 can be seen as a repetition of past problems (1975, 1999)--violent political rivalry and elite power struggles. That is why HAK believes that to resolve the problems of our past, the state, besides guaranteeing the rights of the victims to justice, truth and reparations, must also take measures that have the effect of deterring people from repeating such acts in the future (especially for the perpetrators). If the government resolves the problems of our past in a manner that ignores the rights of the victims, and does not develop means to deter people from committing similar violent, political actions, there will be no guarantee for sustainable development or lasting peace. All the investment in developing our country will be worthless.
And what has occurred in our country to resolve the problems of the past?
Several years ago the state established institutions to fulfill its constitutional mandate (article 160 and 162) on serious crimes and reconciliation, the Commission for Reception, Truth and Reconciliation (CAVR) and the Serious Crimes Unit for investigating and trying suspects of crimes against humanity in 1999. Unfortunately the work of these two institutions has stopped. After CAVR submitted their report to the President in 2005, there has not been any effort by the state to consider and implement the CAVR recommendations. At the same time the Serious Crimes Unit stopped its work in 2004, our state’s leaders clearly showed their disobedience to the constitutional mandate (article 160) and their preference to conduct politics contradictory to universal principles by establishing in 2005, with the government of Indonesia, the Truth and Friendship Commission (CVA) with the intention to “seek justice for the suspects” (through amnesty and restoring friendship with the elite suspects).
On 15 July 2008, the CVA commissioners submitted their report, one year late, to the leaders of the two countries (Republic of Indonesia and Timor-Leste). The report repeated the conclusions or results of the work of other institutions such as Commission of Inquiry for Human Rights Violations of the National Commission for Human Rights in Indonesia (Komisi Penyelidik Pelanggaran HAM - Komisi Nasional Hak Asasi Manusia, popularly known as KPPHAM-Komnas HAM), the Serious Crimes Unit, CAVR. They all state that Indonesia committed gross violations of human rights in Timor-Leste in 1999 during the referendum process. The Ad Hoc Court for Human Rights in Jakarta, the only formal legal proceeding against Indonesian suspects to date was the exception. The Indonesian military, police and civil authorities involved in supporting the pro-autonomy (within Indonesia) militia committed serious crimes against the population of Timor-Leste who wanted independence. The CVA commissioners recognized the events in 1999 as crimes against humanity, but unfortunately they were not honest enough to indicate the people who were responsible for these violations. The CVA report only names the institutions (TNI and POLRI, the Police of the Republic of Indonesia) responsible for human rights violations in 1999. According to HAK, this conclusion is a political hand-washing. The CVA only recognizes the victims of the institutions who committed the crimes but not the suspects or perpetrators. For HAK, naming only institutions is abstract, and needs to be concretized by describing who from those institutions did what. The CVA came up empty handed when it comes to naming who must take responsibility.
This reality was demonstrated by Indonesian President Susilo Bambang Yudhoyono’s recognition of human rights violations that occurred in Timor-Leste in 1999 at the CVA report handover ceremony (15 July 2008), when he did not show any sense of deep repentance for the Indonesian military and police violations. That’s why HAK considers it a demonstration of political theatre related to the 2009 Indonesian general election. Since then, there has been no policy or action by the Indonesian government to implement the CVA recommendations. To date, the Indonesian Parliament has yet to receive or discuss the CVA report to legislate state policy on the government’s legal obligation is to fulfill this mandate.
In contrast, Timor-Leste’s government or state leaders demonstrated their enthusiasm for the CVA report over the CAVR report and recommendations. On 9 October 2008, President Ramos-Horta officially submitted the CVA report to the National Parliament. Just as when the CVA was established, the Parliament has not yet passed any resolution on this initiative of the government, in support or against, however the government has already begun to take steps to follow-up the CVA recommendations. The Foreign Affairs Ministry is currently socializing the CVA report among civil society and representatives of various institutions (November 2008), and has already begun to organize a “follow-up institution” that will work to implement the CVA recommendations.
On the other hand, the efforts of civil society organizations together with some members of Parliament (Commission A) to prepare a National Parliament Resolution on the CAVR report “Chega” have not been well received. Over several months, civil society organizations working on justice issues consulted with human rights victims, studied experiences of other countries, and drafted a concept on how to stop the cycle of impunity by several actions including reparations for victims. They prepared a draft resolution for parliament that unfortunately had no result. Because the majority of the Members of Parliament don’t think the “Chega” report is important, on 10 November 2008 they cancelled the plenary debate scheduled to discuss the draft resolution on the “Chega” report prepared by Members of Parliament from Commission A. The President of Parliament said that, in addition to technical difficulties, the Parliament had to take up other important matters for the nation first¡ªthe 2009 budget.
The politicians do not have the conscience to diagnose (recommend) that the “Chega” report can cure our “social-cultural ills” that otherwise might result in new conflict, or that it could sustainably orient our national development. The elite politicians ignore much good in the “Chega” report only because they are afraid of the recommendation to put the perpetrators of serious crimes, who have become their good friends, on trial. For example, our governmental leaders extended a VIP welcome to Hercules Rosario Marcal, the paramilitary leader of Tanah-Abang in Jakarta, and offered him prime real estate across from Hotel Timor (Dili’s fanciest hotel) for his business investment (TP, 25/3/08). The Soeharto military regime used Tanah-Abang to initiate its terror tactics against pro-independence groups in Timor-Leste and against pro-democracy groups in Indonesia. Hercules has been incarcerated in a Jakarta police station (POLDA), accused of criminal activity. Similarly, according to information HAK obtained, TW, a rich Indonesia business person with close ties to the Indonesian military and a reputation for conducting “dirty” business, as well as threatening Indonesia democracy activists, has become good friends with some members of our government in order to invest in agriculture and infrastructure. Also some ex-Falintil members have started to develop relationships with former TNI generals who in the past committed human rights violations in Indonesia and Timor-Leste, and are currently running for President in the Indonesian elections. (Diario, 26/11/08).
In 2008 the Serious Crimes Unit began its work again investigating cases from 1999. The re-starting of this work is part of UNMIT’s mandate (Security Council Resolution 1704, 25/8/2006), as part of the United Nations obligation to work to stop the cycle of impunity throughout the world, which Timor-Leste and Indonesia ought to support as members of the UN. However, once again the work of the Serious Crimes Unit cannot proceed effectively because of lack of political support from the big countries with a legal obligation to “combat international crimes” and from the leadership of the two countries, Timor-Leste and Indonesia. On the contrary, they try to make the work of the unit more difficult. On 13 October 2008, at a ceremony in Soibada (Manatuto District), President Ramos-Horta said that it would be better if the Serious Crimes Unit did not continue its investigation into the perpetrators of the 1999 crimes (TP, 14/10/08). Those words of the President of the Republic, though spoken at an informal event, gave a clear message that the political will does not exist to fulfill constitutional obligations and the state’s responsibilities to the treaties that Timor-Leste has ratified.
HAK is extremely concerned with these policies of our leadership. Apart from the negative impact on the development of the rule of law, they will exact a huge social cost in the future and the nation’s current investment toward development will not be sustained or remain very fragile. It also means that what we are doing today, does not guarantee the human rights of our future generations.
10. Economic, Social and Cultural Rights
HAK observed in 2008 that the government began to “exhibit” spectacular commitment to fulfill its obligation toward economic, social and cultural rights (DESK). Through the mass media, the public accompanied the government’s distribution of tractors and a variety of equipment to farmers and fisher folk in many rural areas; and that indigent people, elderly women and men and the disabled began to receive $20 monthly subsidies. At the same time, this year the government made radical changes to the Tax Law to eliminate taxes on salaries below USD 500 and to reduce import taxes, especially for basic necessities. Can these spectacular measures improve people’s lives sustainably? Or can this investment by the government really guarantee or secure DESK for Timor-Leste’s population?
According to HAK staff’s experience to empower community leaders and producers groups (fisher folk and farmers) throughout 2008, development policy in some sectors does indeed conform with principles of the International Covenant on Economic, Social and Cultural Rights, for example with regard to social security, and in the health and education sectors. In the health and education sectors progress did not differ significantly in 2008 from the previous government; the current government only extended the programs the previous government had established. From HAK’s perspective these to sectors do indeed comply with the principle obligations of the state regarding economic, social and cultural rights and its constitutional mandate according to article 20 (old age), article 57 (health) and article 59 (education and culture).
The government has taken concrete action to maintain free health care, health services and public education. Gradually the government is extending this assistance to the sub-districts and rural areas. Health centers exist practically throughout the country, and the Sisca program (Integrated Community Health System) has already reached many villages. Although the government faces problems in the education sector, particularly with human resources (capacity and quantity of teachers), and management and administration of schools, there are concrete programs to guarantee the right of basic education for all children (compulsory education) and concrete activities to reduce illiteracy among the elderly. HAK would also like to note that in 2008 that the Ministry of Education has begun to regulate universities or institutions of higher education that until now provided education without legal recognition or academic accreditation.
Besides HAK’s satisfaction with the progress mentioned above, we also have some concerns. The free assistance provided by health centers, referral hospitals and the national hospital is not complemented by adequate or intensive campaigns or educational programs to prevent disease. There are some campaigns to prevent or combat disease, but from our perspective these are not on-going and are not directed to the rural population or those with weak economic standing. Often the campaigns are only partially implemented, are not comprehensive or lack continuity, and at times are undertaken only with ceremonial intentions such as commemorations of important days¡ªending when the day has passed. The orientation of the work and development of the health sector continues to heavily emphasize curative health care over prevention. According to HAK’s perspective, this orientation (curative rather than preventative) can respond to some necessities in the short term, such as controlling disease, but in the long run does not guarantee all people (particularly the poor) can enjoy their right to a healthy life. Logically, as the population increases¡ªespecially because Timor-Leste’s population growth is comparatively high (4.7%)¡ªand disease becomes more complex, while at the same time the financial ability of the state becomes more limited (as the money from oil extraction one day will dry up), in the future only some people will be able to enjoy good health.
HAK’s concerns regarding the education sector relate to the policy of obligatory use of Portuguese language that ignores geo-social-cultural reality. One consequence is that the government’s investment in education does not raise people’s standard of living or contribute to future economic development of the nation. Parents and the government spend a lot of money for children to learn the Portuguese language, but their cognitive (knowledge) and affective (emotional) traits do not develop. One small example: many children learn mathematics in Portuguese, but they count in Indonesian which is not learned in school. In our view, the Portuguese language policy results in the population going backward in relation to accessing the benefits of globalization, rather than facilitating access. Perhaps Timor-Leste will loose another generation before independently (not depending on someone else) entering the competition of globalization.
Another aspect of Economic, Social and Cultural rights that especially concerns HAK is economic development policy. It is a very wide area (economic development) that includes many sectors: agriculture, commerce, cooperatives, finance, vocational and professional training, among others, that in principle the government must develop so that its services and implementation transforms people’s lives positively. However positive transformation of people’s lives does not mean that they sit around producing nothing and receive money. Such activity is charity for the powerless, that most often does not transform the person in a way that increases her/his power, rather only creates a dependent person. Transformation means to empower the person to produce something and to guarantee that what s/he produces reaches a market and sells for an adequate price.
According to the principles of the Convention on Economic, Social and Cultural Rights, the government has an obligation to develop policy, legislation, and administratively (including concrete activity) to guarantee that each person has access to and the strength to work and produce something legal (not contraband), and to receive a just income. Access to and the strength to work does not mean that everyone has to work in the public or formal sector such as civil servants or workers for a private company, more important is the inclusion of informal production that the majority of our population creates (agriculture, small industry, commerce involving local products, etc.). However, what is our reality?
The facts for 2008 show that the government distributed a lot of material to farmers, fisher folk and people engaged in small-scale industries with the intention of improving their production, for example the distribution of tractors, fishing equipment, machines to husk rice, machines to husk coffee, distribution of rice seed, thread to weavers, etc. The government also provided a variety of training to increase production capacity and quality of service, established extensionists, and gave management training for small businesses. To support people’s economic activities, the government held national and district fairs to promote local production, and began to repair infrastructure focused on the main roads and roads connecting isolated or rural areas with main arteries.
These activities and programs are part of the government’s efforts to demonstrate that they are serious about developing the nation’s economy. But can this policy and the implementation of these projects actually guarantee sustainable economic development for the people of Timor-Leste?
Throughout the year, HAK staff heard complaints and received several cases from people indicating the government’s material support for these producers groups is influenced by political party interests, and sometimes to consolidate and benefit their cadres and supporters throughout the country. Others had the impression government support was distributed in a manner to draw support from the opposition party; some even said that the distribution was like a competition between the political parties of the ruling coalition to draw support from the masses. From HAK’s perspective, aside from the possibility of partisan interests this support can definitely lighten the burden of farmers and fisher folk, but we are very concerned about the sustainability. The government is spending a lot of public resources (the people’s money) without long-term benefits. The government’s investment does not secure economic independence for the people and country of Timor-Leste.
From HAK’s perspective, the government demonstrates a charitable attitude toward the farmers and fisher folk but doesn’t sufficiently balance their development policy with the culture, resulting in people lining up to receive sophisticated equipment that they don’t know how to manage so that it benefits a larger group of people. They don’t know how to maintain the equipment, and especially they don’t know how use it without causing unnecessary environmental destruction. In 2000, the CNRT (not the political party but the National Council of Timorese Resistance) distributed tractors to farmers in many areas. Those tractors are now abandoned and many broken. The government needs to introduce appropriate technology according to people’s needs, and appropriate to the capacity or ability of society to adapt to it, so that producers can easily use the material they receive for sustainable benefit and in way that they do not become dependent on those distributing the goods. Introducing equipment and sophisticated machinery right now without good judgment will trap people in dependency and result in the users spending a lot of money on maintenance and keeping the materials functional.
The government’s policy does not provide any certainty for agricultural producers so that they could sustain themselves from their products. The new tax law, by reducing import taxes opens the door to Timor-Leste being inundated by imported products, not just industrial products of poor quality (seconds) but also agricultural products that our farmers actually can produce. Thus it is more difficult to obtain a fair price for local goods in local markets that guarantee sufficient income for Timor-Leste’s producers. It is especially difficult to imagine our products penetrating international markets. Aside from the dominance of imported rice, we now see many imported horticultural products for sale, such as potatoes, onions, garlic, dried fish, etc. And not just in supermarkets but also in traditional markets.
The opening up of Timor-Leste to the outside has not only brought in imported goods and materials but also migrant labor. As a result those working in trades, trained in a variety of areas, find it difficult to compete with trades people from abroad who offer suitable quality services for cheap prices. On one hand the government claims that they have succeeded in attracting investors from abroad who offer employment to Timorese (TP, 31/12/09), but in reality the majority of the investors are business people who come to sell imported goods and commerce which replaces local businesses. In April 2008 there was a conflict in the Baucau market between local and Chinese business people over commercial space to sell their goods.
HAK has received complaints from some unemployed people about the difficulties of finding work due to the fact that foreign investors do not only bring in technical workers from abroad but also unskilled workers. This makes it very difficult for unskilled Timorese to access work or projects where the contractors are foreign business people. According to several sources in the Finance Ministry the tender for many projects, especially procurement, are granted to foreign businesses (Indonesian). Even if the complaints and information are without grounds, in anticipation of a worsening situation, the government must be pro-active and take measures to protect Timorese workers and guarantee some certainty regarding work for the unemployed in the country besides their focus on programs to “export” workers to other countries. We think that the government’s reasoning that we sometimes hear, that Timor-Leste is part of the free market system and therefore the government cannot take protectionist measures is unfounded. Besides there being no constitutional justification for the free market, the government, as a state-party to the International Covenant on Economic, Social and Cultural Rights, has an obligation to take some measures (legislative or administrative) to guarantee everyone access to work. This means that the government has an obligation to regulate “competition” of workers in the country.
Another concern related to policy intended to resolve the problem of unemployment is the “Two Dollar Project”. During 2008 the government continued to realize a project that existed during the UNTAET administration¡ªcash for work. Through community authorities, the government organized neighborhood and village clean-up, cleaning of gutters, road repair and construction in rural areas. Those who participated in these activities received US$2 for a day of work. On one hand, people see the project as distributing a little money that principally circulates in Dili or remains in the hands of the elite, in order that it reach the average person who finds it difficult to earn just U$1 per day. From an economic perspective, the intellectuals say it gives people “buying power” to purchase goods or shop. The problem is that besides creating unsustainable jobs, this approach also destroys people’s initiative to engage in productive work for themselves or creates strong dependency on money. In some places the “Two Dollar Project” caused problems, in addition to mistrust in the community in relation to the local authorities (corruption), many producers groups organized by the NGOs lost their motivation to work improving and developing their own farms and rice paddies.
Another policy that merits concern is the government’s Economic Stabilization Fund (FEE). As the public knows, in July 2008 the National Parliament approved a new budget item called FEE totaling US$240,000,000 (USD 240 million) as part of the 2008 revised budget. The government justified the budget line in anticipation of increased cost of living resulting from the impact of the food crisis and high gasoline prices internationally. Based on the little information available, we interpret the intention of the FEE to guarantee stability in the prices of goods within the country so that the poor people are not unduly burdened.
In reality, according to
HAK’s monitoring of the price of goods, the FEE, which was declared unconstitutional
in November 2008 by the Supreme Court, did not have a concrete impact to
stabilize the prices of goods in the markets as seen in the table below.
|
Goods/Products
|
Cost/price
2008 (USD)
|
January-June
|
July-November
|
December
|
|
A.
Fuel
|
1.
Diesel (1 liter)
|
1.40
|
1.10
|
0.97-0.98
|
|
2.
Gasoline (1 liter)
|
1.50
|
1.10
|
0.87-0.89
|
|
|
3.
Kerosene (5 liters)
|
2.50
|
5.00
|
5.50-6.00
|
|
|
B.
Basic consumer products (import)
|
1.
Rice (35kg)
|
16.00
|
22.00
|
12.00-18.00
|
|
2.
Cooking oil (5 liters)
|
4.50
|
8.00
|
7.50
|
|
|
3.
Supermi/Ramen noodles (1 box)
|
3.75
|
4.25
|
5.75
|
|
|
C.
Consumer products (local)
|
1.
Vegetables (1 bunch)
|
0.25
|
0.50
|
0.50
|
|
2.
Buffalo (1 kg)
|
3.50
|
4.5
|
5.00
|
|
|
3.
Chicken (average size)
|
5.00
|
7.00
|
10.00
|
|
|
D.
Construction Materials (imported)
|
1.
Cement (1 sack)
|
3.75
|
4.50
|
5.75
|
|
2.
Rebar (6 mm)
|
3.75
|
2.75
|
2.75
|
|
|
E.
Construction Materials (local)
|
1.
Cement blocks (No. 2)
|
0.22
|
0.25
|
0.35
|
|
2.
Sand (1 truck load, No. 2)
|
15.00
|
20.00
|
25.00
|
The table shows that in general after the creation of the FEE the prices of basic goods or things that people consume daily, as well as construction materials, are not stable with the exception of fuel prices, which were relatively stable, but that was perhaps due to the international market price for oil which dropped from US$147 to US$39 per barrel. However, the price of kerosene that people use for cooking remained high. This demonstrates that the government did not have a concrete policy to control the price of kerosene to guarantee that people would not use wood for cooking (people still cut and sell wood) which continues environmental destruction.
The price of rice dropped in December 2008 to US$12 for rice that the government sold but not for the rice that stores or business people imported to sell in the country (US$18). The US$12 price of government rice was a form of market intervention, an act of “charity” for the population for Christmas and New Years. Therefore, according to our perspective, in general the FEE did not have a concrete effect to improve daily life of the population.
Conclusion and Recommendations
In general the changes in the human rights situation in 2008 were interesting. Compared to 2007, people began to feel relatively free in relation to their civil and political rights as demonstrated by more freedom of movement. Although some problems occurred due to unprofessional behavior or immature authorities, in general people carried out their activities freely and without threats from groups or individuals. With increasing income from oil revenues, it was possible to “buy” liberty for the people.
In relation to economic, social and cultural rights, through the many government projects people have begun receiving materials needed for increased agricultural production and fishing and money, however these projects are not yet accompanied by systematic development that will guarantee the materials and money received actually result in sustainable incomes. The projects leave the impression that they are more a political show than serious action to actually transform the society so that people have a better life in the future. Handing out goods and money only makes people dependent; however it does not resolve the cause of their poverty.
Perhaps this is what always happens for recently independent nations. However, Timor-Leste as a country the international community considers progressive when it comes to human rights (having received many prizes and legally adopted many human rights principles), and as a small country (in territory and population) can do a lot so that our people can enjoy and feel secure in their rights now and in the future. Unfortunately, we often hear people complain that our leaders are concerned more about their own social and economic security than creating systems that will insure a sustainable economic foundation for the nation and social security for the people who work for the common good (for the good of many people). The people point to the pension law, the purchase of luxury cars for the parliamentarians, the leaders involvement in the tender process for projects, their big salary increases, and the manipulation of projects to maintain their positions. These phenomena result in lack of significant action to insure the state’s obligations to human rights by the institutions they create to promote and protect human rights (such as the Provedor’s Office on Human Rights and Justice), in addition they are more concerned with capacity building projects.
As an organization working for human rights, we mention these concerns not to engage in any competition for political power but as an effort to draw everyone’s attention to them in order to learn from our experience and improve where needed, so that gradually the conditions of our liberty that the majority of us want can indeed be realized. It is our wish that our leaders strive to understand the state’s obligations for the conventions Timor-Leste has ratified, so that in their policy decisions they abide by the principles of those treaties. We also hope that those with political power demonstrate leadership and manage public resources wisely to insure sustainable benefit for all people, rather than for short-term benefit and only for some groups.
HAK Association
Author: Jose Luis de Oliveira, with contributions from Rogerio Viegas, Leandro Sena, Leo Santos, Paula Marcal, Julino Ximenes, Manuel Monteiro, Edio Saldanha, Sisto Santos.
Translation by Jill Sternberg and Joao Sarmento.
Association HAK (Association
for Law, Human Rights and Justice)
Rua Governador Serpa Rosa
T-091, Farol, Dili, Timor-Leste
Tel. +670-331-3323
See also:
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