etmnlong.gif (2291 bytes) spacer HUMAN RIGHTS AND THE FUTURE OF EAST TIMOR
Report on Joint UNTAET Human Rights Unit and East Timor Jurists Association workshop held in Dili, 7-8 August 2000

Contents

1. Background and aims

Organisation

Participants

4. Format

5. Keynote address and opening remarks

6. Thematic presentations and discussion group recommendations

Conclusion and follow up


BACKGROUND AND AIMS

The workshop was jointly organised by the Human Rights Unit of UNTAET and the East Timorese National Jurists Association to further human rights in East Timor. The workshop was intended to begin a process of consultation and discussion to translate into concrete policies and practical action the commitments that the United Nations and the East Timorese have made to respect and uphold human rights.

The workshop was held at this point to take advantage of the current period of political and intellectual inquiry in East Timor and to ensure that human rights considerations inform the policy process of the various professional and political conferences being organised. The recommendations of the workshop will be widely disseminated, including at the CNRT Congress 21-30 August. The workshop was also timed to coincide with the first visit to East Timor of the UN High Commissioner for Human Rights, Mary Robinson, who kindly agreed to open the workshop with a keynote address.

The aims of the workshop were to:

identify future direction and develop a program of action for the protection and promotion of human rights in East Timor during the transitional period and for East Timor’s independence

facilitate building a commitment from political leaders to a basic set of principles and goals which they will uphold and translate into concrete policies and programs

facilitate a process towards developing a common platform for East Timorese organisations and groups working to advance human rights, including through the provision of international human rights documents in translation

provide an opportunity for all sides – UNTAET, UN agencies and East Timor’s political leaders to inform participants about steps they have taken and plan to take to ensure that human rights principles and standards are honoured in practice.

ORGANISATION

The Workshop was organised by the UNTAET Human Rights Unit (with generous support from District Human Rights Officers) and the East Timorese National Jurists Association.

The UNTAET Human Rights Unit is located at the UNTAET Human Rights Centre in Comoro, Dili. The Centre also houses the Serious Crimes Investigations Unit and the Dili Morgue. The principal activities of the UNTAET Human Rights Unit are to monitor human rights in East Timor, including the rights of returnees, women, children, workers and ethnic and religious minorities, to provide training and other forms of capacity building, and to support initiatives on truth and reconciliation. The Unit is supported in this work by field officers in most districts.

The East Timor National Jurists Association (ANMEFTIL, Asosiasaun Nasional Makaer Fukun Timor Lorosae) was founded on 9 February 2000 and held its first congress on 25 May. ANMEFTIL comprises about 100 East Timorese law graduates, para-legals and human rights activists. It serves as a forum on legal, constitutional and human rights issues and since its establishment has been involved in the development of legal infrastructure, commentary on UNTAET regulations and the promotion of public discussion on legal and constitutional issues.

In developing the Workshop agenda, the organisers consulted with the following groups and organisations: Yayasan Hak, the NGO Forum, Sahe Institute for Liberation, Father Juvito do Rego of Dili Diocese, the East Timorese Women’s Network, the Student Solidarity Council, and the Juventude Youth Group.

The Workshop was made possible due to generous financial assistance from UNDP and UNICEF.

The venue was the conference centre at the rear of the Canossian Sisters Provincialate in Becora. Morning and afternoon tea and lunch was provided on both days by Helena Monteiro Catering.

A photo exhibition of the destruction of East Timor during the post-ballot period was displayed during the Workshop. The exhibition was supplied by the East Timor Human Rights Centre and comprised 13 large photos taken by photographer Ross Bird, the author of ‘East Timor: inside out’.

The workshop was opened with prayer on the first day, led by Fr Juvito do Rego, and with a cultural performance on the second day, provided by the Joao Nunes Cultural Group.

On registration, each participant was supplied with a kit containing the following items:

A glossary of human rights terms and definitions (in Tetun, English, Indonesian and Portuguese)

UDHR (in Tetum, English and Indonesian)

CNRT Magna Carta Concerning Freedoms, Rights, Duties and Guarantees for the People of East Timor (in English and Indonesian)

Backgrounder on human rights national action planning, plus recommendations from the July 1999 Bangkok workshop on NAPs (in Indonesian and English)

International Covenant on Economic, Social and Cultural Rights (Indonesian and English)

International Covenant on Civil and Political Rights (Indonesian and English)

Convention on the Rights of the Child (Tetun, Indonesian and English)

Convention on the Elimination of Discrimination Against Women (Tetun and Indonesian)

Declaration on the rights of human rights defenders (English)

Keynote address by UN High Commissioner for Human Rights, Mary Robinson (English and Indonesian)

Talk by Munir SH on ‘Legal protection of human rights’ (Indonesian and English)

Talk by Pene Mathew on ‘Economic, social and cultural rights’ (English)

Profiles of speakers and panelists (English and Indonesian)

Stickers with message in Tetun: ‘Direitus Humanos: Hatene ba! Hamoris ba! Defende ba!’ (Human rights: Know them! Live them! Defend them!)

The following interpreters generously gave their time to facilitate communication at the Workshop either by translating documents, or interpreting for speakers, panelists, moderators and in discussion groups: Jacinto dos Santos, Atoki Madeira, Dionisio Babo, Benevides Correia Barros, Cathy Muir, Zelda, Vanessa Hearman, Galuh Wandita.

PARTICIPANTS

160 participants registered for the workshop, of whom over 60% were East Timorese - representing the districts, NGOs, the Church and political parties. Women’s organisations were well represented. Representatives of the Muslim community, the Protestant Church and the Chinese community also attended part of the workshop.

CNRT was represented at the opening by Dr Mari Alkatiri. CNRT President Xanana Gusmao could not attend because of a prior commitment to preparations for the CNRT Congress. Bishop Belo and Bishop Nascimento were also both invited but could not attend due to commitments outside Dili. Apart from CNRT, political parties represented were UDT, RDTL and CDP. Written invitations were extended to all the political parties and were followed up by visits to leaders of the major parties.

International participants included representatives of several UNTAET departments, UN agencies, international NGOs, the World Bank and several diplomatic missions.

FORMAT

The Workshop focussed on six themes (3 on day one, 3 on day two) considered to be fundamental to the future of human rights in East Timor. Each was introduced by a short presentation and panel discussion and followed by discussion groups. The whole afternoon of day 2 was devoted to plenary discussion and adoption of recommendations from the discussion groups.

Workshop participants agreed to a recommendation that, due to time constraints, a Working Group should be established following the Workshop to finalise the text of the recommendations and develop an implementation strategy. The Working Group comprised the organising committee and discussion group facilitators. New recommendations proposed during the plenary and discussion group recommendations which needed further discussion, were referred to this Working Group.

Mr John Pace, former Secretary to the UN Commission on Human Rights and currently Chief Executive of the Australian Legal Resources International (ALRI) provided an overview and comments at the conclusion of each day.

5. KEYNOTE ADDRESS AND OPENING REMARKS

5.1 Mary Robinson, UNHCHR

The UN High Commissioner for Human Rights, Mary Robinson, delivered the keynote address entitled ‘Building the Future of East Timor on a Culture of Human Rights’. Points made in the speech and in answer to two questions included the following:

human rights must be guaranteed because they are the foundations on which democracy, the rule of law and sustainable economic and social development are built

national capacities and national mechanisms must be created to promote and protect human rights for all

CNRT has made a commitment to human rights through the Magna Carta

support for women’s rights including women’s participation in the political sphere, gender analysis of all development policies and laws which protect women from all forms of violence

support for children’s rights

support for the rights of minorities including Muslim, Protestant and ethnic Chinese and condemnation of acts of extra-judicial justice or revenge against returnees

accountability for the gross violations in East Timor last year and vigilance against corruption whether economic or political

support for the development of a strong and educated civil society and NGOs

a bill of rights built into the Constitution

a pledge of concrete support by her Office for East Timor including for initiatives such as a national human rights action plan, human rights training and a human rights commission

an international tribunal remains an option if Indonesia does not deliver justice

the divide/inequality between the UN and the East Timorese people must be addressed.

5.2 Mari Alkatiri, CNRT

In his opening remarks on behalf of CNRT, Mari Alkatiri welcomed Mary Robinson to East Timor and expressed his appreciation of her expressions of support for strengthening human rights in East Timor. East Timor’s proclamation of the collective right to self-determination has benefited all East Timorese individually. There are no collective rights without individual rights, no rights of the majority without rights of the minority. Potable water, education, health and employment are human rights. Political and judicial structures should develop in parallel. East Timorese in West Timor should be referred to as ‘deportees’ rather than ‘refugees’. There is no conflict between justice and reconciliation but reconciliation requires special care.

5.3 Sergio Vieira de Mello, SRSG

In his opening remarks the SRSG made reference to

the establishment of the Serious Crimes Panel and the arrival of a new General Prosecutor

UNTAET’s support for the emerging concept of a truth and reconciliation commission for East Timor and his belief that it will contribute to the return of refugees from West Timor

Mary Robinson’s proposal that a commission be established (comprising a majority of East Timorese, especially women, and supported by UNTAET and ICRC) to search for missing bodies and return them to their families for burial

the need to eradicate the culture of violence in East Timor and support a vibrant civil society which is one of Timor’s great riches

interest in recommendations from the Workshop to UNTAET, the Cabinet, and the National Council to help them fulfil their human rights obligations.

Following this plenary, Mary Robinson had private meetings with local NGOs and representatives of the Muslim community. The High Commissioner and her staff also had discussions with UNTAET Human Rights on technical assistance to East Timor, including human rights training.

THEMATIC PRESENTATIONS AND DISCUSSION GROUP RECOMMENDATIONS

The recommendations which follow each theme below were developed in discussion groups, approved by a final plenary, and finalised in their current form by a Workshop appointed Working Group.

 6.1 NON-DISCRIMINATION AND EQUALITY BEFORE THE LAW

Presenter: Mari Alkatiri (Minister for Economic Affairs).

The Convention on the Elimination of Discrimination Against Women has been developed because men are dominant in most spheres and women are denied participation. This fight for equality should be supported by both men and women. Children, workers, ethnic minorities and other religions also experience discrimination and inequality in East Timor. The challenge is to implement internationally agreed rights and the CNRT Magna Carta in law and practice in the new East Timor.

Respondents: Rev Arlindo Marcal (Head of Protestant Church) and Maria Olandina Alves (Director, ET-WAVE).

The law must be applied impartially. Militia currently in prison are the little fish while the big fish are swimming freely. The law is often heavier on the poor than the rich. Programs are needed to ensure the poor are adequately represented in court and know their rights in dealings with the police. Minorities should be involved in making the laws.

In theory everyone is equal, but it is only through their own efforts that women will enjoy their rights. Children are our future but their rights are denied. They should be allowed to play and have an education but this is not the reality for many children in East Timor.

6.1.1 Recommendations (principles)

All East Timorese should enjoy equal rights and equal opportunity, including women, children and minorities. There should be no discrimination in East Timor on the basis of ethnic origin, religion, gender, age, political ideology, or on the basis of being a refugee or victim.

The judicial system must be based on and apply international human rights law and provide protection for the accused and vulnerable groups and minorities in East Timor.

East Timorese women should have equal access to jobs, property, and education (including scholarships) and receive equal pay for equal work.

Women should have equal access to credit, household income and resources, and family inheritance.

All East Timorese children, including those separated from family and orphans, the poor, disabled, and those born out of rape, have equal rights to health, education, counselling, food, shelter, and play and recreation.

Children have the right to express themselves in the family.

Adopted children have the right to receive inheritance.

There should be no discrimination in the area of labour rights, including leave and wage entitlements and working hours and conditions.

The freedom to practice the religion of one’s choice should be upheld in East Timor, including the right to build churches and mosques and receive a religious education..

6.1.2 Recommendations (specific)

1. The government, both UNTAET and the future government of East Timor, should commit resources to the promotion and protection of human rights, establish implementing mechanisms and support human rights defenders.

2. Human rights should be taught in the education system and a curriculum appropriate to East Timor should be developed for this purpose.

3. A civic education program should be developed for East Timor and implemented throughout the country, including at local village level.

4. Laws should be enacted

to protect the rights of returnees and victims of human rights abuse

to protect children under 15 against child labour abuses, and

to protect women’s rights to inheritance.

5. Measures are required to eliminate the negative impact of the patriarchal system on women, including in the areas of assets/property inheritance, the adat system and decision making in the family and community.

6. Affirmative action policies and practical strategies should be developed to maximise opportunities for women to obtain the skills and experience needed to increase the number of women participating and taking on positions of leadership in all fields, including in economic and political arenas in East Timor. Strategies should include equal opportunity for women in employment, education, scholarships, training and overseas conferences. The objective should be that women will fill at least 30% of places in government, parliament, civil service and political parties in the short term.

7. The future East Timorese government should establish a gender unit.

8. A Commission specifically to address the situation of children should be established in East Timor.

9. Polygamy should be discouraged and women in polygamous marriages should be protected from sexual slavery, discrimination and other violations of their rights, where they occur, through measures such as education, a code of ethics and legislation.

10. A Commission to investigate land and property rights, both state owned and private, should be established.

6.2 FREEDOMS OF EXPRESSION, ASSOCIATION AND ASSEMBLY

Presenter: Lucia Lobato (Consultant to UNTAET Judicial Affairs).

The struggle for freedom is universal and has a long history. Freedoms are not absolute, e.g. speech that advocates racial discrimination is proscribed. These 3 freedoms were denied under Indonesia. Many were imprisoned without proper trial for holding meetings. The Santa Cruz massacre violated the right to life but was also a violation of freedom of assembly and expression. The freedom not to associate was also violated, e.g. for youth who were forced to join the militia.

Under UNTAET, the 3 freedoms are guaranteed and dozens of new groups are forming, holding congresses and enjoying their rights. However, the right to information and transparency is not fully respected e.g. information on new laws is poor, especially in the villages; international NGOs are winning tenders designed for private enterprise.

The 3 freedoms should be guaranteed in the Constitution. There can be no democracy without these rights. Democracy and human rights are mutually supportive.

Respondents: Rosa Garcia (journalist) and Gregorio Saldanha (former political prisoner).

Media freedoms increased with the fall of Suharto in 1998 and the beginning of ‘reformasi’, though restrictions remained. Under UNTAET, there is a tendency to exercise these freedoms without responsibility, e.g. in the name of freedom, many NGOs are using humanitarian aid to start businesses. On the other hand, political comment has been met with violence by those criticised. Other examples are Australian PKF restrictions on Portuguese media to conduct interviews at the border and the adoption of an official language many do not understand.

The continuing development of Tetun is important. The 3 freedoms were also restricted under the Portuguese administration, but repression worsened after 1975 and freedom of expression could only be exercised through clandestine means. The ballot last year was our most concrete experience of our right to freedom of expression and assembly. But there were no guarantees so our rights were repressed violently. The Constitution must guarantee the 3 freedoms.

6.2.1 Recommendations (Principles)

The right to access and provide information must be guaranteed in East Timor to ensure good governance and people’s empowerment and participation, including at the village level.

 

6.2.2 Recommendations (specific)

1. The media in East Timor have a duty to assist with the education all parts of the community in human rights, civic education and democracy.

2. Domestic legislation, based on international standards, should be enacted in East Timor to guarantee freedom of the press.

3. The growth of community media should be encouraged and measures taken to ensure it has adequate resources, including transport, to meet its obligations to all parts of the community, and to protect it from private and/or international control.

4. Political parties should be monitored to ensure they comply with the law.

5. As citizens, civil servants have the right to join political parties and unions.

6. The rights of citizens to form independent associations free of government interference should be guaranteed in the Constitution and by law.

7. Legislation should be enacted to

protect journalists and interviewees

to outlaw defamation and racial or other forms of hatred

8. The media should be encouraged to regulate itself through the development and implementation of a code of ethics for all members of the profession.

9. Regulation and registration of labour and other associations should comply strictly with international human rights standards.

10. The police and armed forces should be trained in human rights, particularly understanding of the right of people to peaceful assembly.

11. Civic education and other campaigns should educate the community in the responsibility of people participating in public gatherings and demonstrations not to use violence or destroy property.

12. An ombudsman office should be created to receive and resolve complaints, if necessary through arbitration, and its independence from the government should be guaranteed.

 

6.3 ECONOMIC,SOCIAL AND CULTURAL RIGHTS

Presenter: Penelope Mathew (Australian National University).

Internationally agreed economic, social and cultural rights were systematically violated during the Indonesian period by, inter alia, military take over of property and resources, famine, transmigration, access to economic interests through corruption, and cultural and political abuse of education. Economic activity alone cannot provide these human rights; democracy and good governance are also essential. Civil and political rights are also essential for the enjoyment of economic, social and cultural rights and vice versa.

It is helpful to examine 3 rights that are particularly real for East Timor at this point. (a) The right to adequate housing is more than a right to a roof over one’s head. It also entails security of tenure, access to basic resources (safe drinking water, drainage etc), affordability, cultural acceptability etc. Reconstruction in East Timor must meet these standards. (b) The right to education underpins many other rights e.g. equal opportunity for women, civil society, development, realisation of a child’s potential, democracy, cultural identity. Article 13 of the International Covenant on Economic, Social and Cultural Rights and Article 29 of the Convention on the Rights of the Child lay down the state’s educational obligations. (c) The right to food underpins the right to life and the right to health, and therefore implies the right to adequate food. Adequate food requires, inter alia, responsible use of land, distribution systems, standards, respect for cultural rights in relation to food.

As a signatory to these rights, East Timor will be obliged to implement them ‘progressively’, to give them priority and not to misallocate funds, to avoid discrimination, to incorporate international obligations into the Constitution and domestic law and to take other measures, including the development of a national human rights plan of action.

Panelists: Maria Domingas Alves (Fokupers), Father Juvito do Rego (Diocese of Dili)

Economic development can only come with good governance. Indonesia’s authoritarian system denied people these rights. Good governance involves respect for human rights, such as the right to education. The government should cooperate with civil society and private business to guarantee these rights.

The people have a right to economic development. East Timor should not be turned into an economic project for a few with resources. East Timorese are also fighting for cultural liberation from the past and to rediscover their true identity. People visiting should make East Timorese feel precious in their own country.

6.3.1 Recommendations (Principles)

Economic, social and cultural rights should be upheld in East Timor without discrimination and guaranteed in the Constitution and domestic legislation

Special care should be taken to protect and promote the economic and social rights of women and minorities and of the homeless, the sick, the disabled and the old.

Education should be free and available to all, especially women, until at least senior high school level.

Cultural rights - including language and customs - should be promoted, not just protected.

 

6.3.2 Recommendations (specific)

1. To protect and promote economic and social rights in East Timor, policies should be adopted which (a) control foreign investment, the use of outside labour, imported food, building materials and services, and (b) which positively:

support local production

strengthen local capacity and skills

create employment opportunities for East Timorese, and

make use of local natural resources (while respecting the environment).

2. The ‘basic economy’ (ekonomi rakyat) should be developed and strengthened and the marginalised, women and other disadvantaged groups should have equal access to credit and other resources.

3. Regulations are needed to ensure that the rights of women and other disadvantaged groups to land and housing are upheld, balanced with the rights of owners, and that mechanisms are established to resolve disputes.

4. Clear information should always be provided on humanitarian and development projects so that local communities and East Timorese employed on the project know both the scope and limits of the enterprise and confusion and frustration are avoided.

5. More resources should be committed to public health education to prevent the spread of diseases.

6. Measures should be taken to eliminate cultural norms and practices which infringe on women’s rights.

7. Recruitment processes and wage setting should be transparent and involve clear communication and contracts in languages that are understood by workers and reflect the employment agreement. Workers should be provided with a copy of the contract.

8. Public transport should be made more available, particularly in the villages, to assist in the development of the local economy..

9. Public education should be undertaken to discourage blatant and wasteful consumption (e.g. in the form of large and lavish parties) at a time of critical social and economic need.

10. The government should nationalise property owned by the Portuguese and Indonesian governments and use the proceeds to establish a central fund to compensate East Timorese who lost land during the Portuguese and Indonesian periods.

11. The right to health requires the provision of mental health services in East Timor and the training of professionals in psychology and psychiatry.

 

6.4 LEGAL PROTECTION AND HUMAN RIGHTS

Presenter: Munir SH (Kontras, Jakarta)

The domestic legal system plays a fundamental role in the protection of human rights. Human rights activists must give close attention to the development of East Timor’s national laws. Being a signatory to international human rights instruments is ineffective unless these instruments are translated into good domestic legislation. The Constitution must not only guarantee human rights but provide for procedural guarantees including the independence of the judiciary. To effectively protect human rights, a country must also create laws on crimes against humanity, act against legal immunity for perpetrators (e.g. allowing military to be tried in military tribunals only), protect witnesses and human rights defenders, guarantee a fair trial, and not permit violations in the name of territorial integrity and national security. This requires a democratic system which respects human rights and is not the instrument of those in power to create laws to protect their own interests.

Panelists: Domingos Sarmento (President, Dili District Court), Isabel Ferreira (Director, East Timor Human Rights Commission), and Christa Meindersman (Judicial Affairs and Serious Crimes Unit).

East Timor must adopt and use human rights conventions and protect human rights through the Constitution. Strong NGOs and human rights education are vital to protect human rights. Human rights institutions must also be established in the villages, not just the urban areas. Domestic law and the state’s international obligations should work together to protect human rights.

East Timor has suffered terrible human rights violations but equally it has a unique opportunity to develop something special. Implementation is a major challenge in a country where even buildings to hold a trial do not exist and where it will be difficult to uphold presumption of innocence when someone is accused of being militia by the whole community.

 

6.4.1 Recommendations (Principles)

International human rights instruments should be ratified and translated into effective domestic legislation.

The judicial system should be independent and free from intervention by the government or other agencies.

All legislation and regulations should be subjected to a gender analysis to ensure they do not infringe the rights of women or men.

Strong NGOs and human rights education are also essential to protect human rights and to ensure good human rights legislation and practice by the police, prosecution and judicial system.

6.4.2 Recommendations (specific)

1. The system of military courts practiced in Indonesia encourages impunity and should not be allowed in East Timor. All trials should be conducted in civilian courts.

2. The justice system, including the courts and penal system, should make special provision for juveniles charged with breaking the law.

3. East Timor’s criminal code should include measures to protect witnesses and victims.

4. Law enforcement officials and related government agencies are subject to human rights standards and the rule of law. East Timor should establish an independent watchdog to monitor their actions; violations should be submitted to an independent and full investigation; and wrongdoers should be brought to justice..

 

 

 

 

 

6.5 MAKING A CONSTITUTION FOR EAST TIMOR

Presenter: Johny de Lange (Parliamentarian, South Africa)

The processes currently underway in East Timor will only come once in your lifetime and in the life of East Timor. You are the chosen generation and you hold the past and future in your hands. The sacrifices and struggles have to be harnessed and projected as ideals for the future. You need time to contemplate and reflect but you also have to work within a timeframe to achieve objectives. The two important elements in framing a Constitution are process and substance.

Process can be (a) constitution imposed by a coloniser (b) constitution by a coloniser but with some local participation e.g. Zimbabwe (c) constitution drafted by experts or group of politicians, e.g Malawi (d) constitution framed by a Commission e.g. Fiji. None of above allowed much input from the people. In South Africa the people were involved, but there were two phases – an ‘undemocratic’ phase when it was not clear who the 26 parties represented (this resulted in an interim constitution) and a democratic phase, post-elections.

The key point is the South Africans did it themselves (taking into account experience from outside). As a result everyone had a say (the Constitutional Assembly received one million representations) and most are proud of the constitution, even if they do not agree with all its contents. But to participate fully, the people need to be empowered. South Africa did not do this well. Visit the whole country and take time to discuss and receive inputs from all corners of the country.

In developing the substance or content, avoid jargon, and take into account the socio-economic situation of your country and the later cost of implementing the Constitution. South Africa now has more Commissions than it can afford.

There are two broad constitutional models (a) Parliamentary sovereignty over the constitution e.g. England (b) Constitutionalism, which places limits on the legislature and government, spells out normative values and provides for judicial review of the law to ensure compliance with the Constitution.

Panelists: Ana Pessoa (Minister for Internal Administration) and Alexandre Corte Real (Investigating Judge, Dili District Court)

All groups must be empowered to ensure meaningful participation in constitution building. East Timor’s first constitution must enshrine human rights, and include controls over the executive and the separation of powers (executive, legislature and judiciary). The constitution should also take into account East Timor’s situation, be workable and be used to develop the country not maintain the status quo. A broadly representative Council could be formed to look at a Constitution and include CNRT, all parties and civil society. This Council would also be responsible for socialising the community, including in the villages, and discussing what norms should go into the constitution. The elected legislature will have the final say.

 

6.5.1 Recommendations (Principles)

All the people of East Timor must be allowed to take part in the consultations for the constitution.

The process of drafting a constitution and conducting public education campaigns should begin before the general election is held.

 

6.5.2 Recommendations (Specific)

1. The constitution should uphold the full range of civil, political, economic, social and cultural rights for all East Timorese and include guarantees for the protection of these rights.

2. The future judiciary of East Timor should have the power of judicial review to ensure that all laws adopted in East Timor comply with the human rights enshrined in the constitution.

3. Three models for the building of a constitution are offered:

(a) Model one: formation of a Consultative Council by the Transitional Government to write a draft Constitution, followed by a ‘popular consultation’.

Step I: Formation of a Consultative Council with representatives from

* political parties * faith communities * local NGOs * youth and student groups

* women’s advocacy groups * liurais, lia-nain, chefe de sucos * minority groups * Falintil

* representatives of the business community * former political prisoners * district representatives * workers groups

Step 2: establish procedure for popular consultation

Step 3: empowerment by giving information on the consultative process to the people (by radio, newspaper, civic education, TV)

Step 4: collect feedback from the people

Step 5: drafting of draft constitution by * Jurists * Judges * Constitutional experts

* Academics * Other lay persons capable of contributing

 

6.6 TRUTH, JUSTICE AND RECONCILIATION

Presenter: Peter Hosking SJ (Country Director, Jesuit Refugee Service)

A process of investigation is required to bring to justice those responsible for crimes last year and to put on record the systemic causes of that violence over many years. The Church, UNTAET, student groups, CNRT and NGO networks should work together to ensure truth is told, the history written, reparation given, and serious crimes prosecuted within a formal justice system.

Long histories of oppression and violence change the way people relate. Truth telling will sow the seeds for national reconciliation, help East Timor start on the right base and contribute to future peace. It takes the violence out of people’s hearts, but is painful for all – victims, those responsible, those who benefited. The process should cover the past 26 years and acknowledge wrong on every side. Truth telling is not a substitute for prosecution in a formal court, but provides another form of accountability.

A Commission should be established immediately (possibly inaugurated on September 4, first anniversary of announcement of the ballot). It would need about 18 months and a budget from UNTAET of about $10 million. The Commission’s mandate should be (a) to listen to the truth about abuses since 1974 and (b) to assist the work to bring home the people currently held hostage in West Timor. A panel of wise, politically independent and respected individuals should conduct the hearings and publish a report. Hearings can be in Dili, the regions, public or private, individual or group. The Commission should also document the role of the Indonesian authorities and other powers in causing or allowing crimes to occur. The Commission should also help with the return and re-integration of people in West Timor – including through monitoring freedom in the camps.

There must be formal justice for perpetrators of serious crimes (murder, rape, mass destruction of property). Amnesty or leniency should not apply. Offenders must be punished. Impunity encourages crime. Judicial mechanisms are moving too slowly. Reparation is also needed (through, e.g. a fund established by Indonesia, a memorial trust established by the UN, commemoration of massacres and other forms of public recognition, counselling and care within the public health system).

Less serious crimes require different responses where, e.g. there is indisputable evidence of duress, or too many cases for the legal system to handle. Minor crimes or crimes of compulsion could be prosecuted through community mechanisms, operating in the context of truth, reconciliation and justice, and witnessed by the authorities.

Impunity for political reasons for perpetrators of serious crimes should be rejected. Committees should be established to prepare local communities to receive returnees and to advise returnees of their rights and responsibilities. The difficulties in securing the return of the estimated 70,000 hostages in West Timor are great.

Panelists: Jose Luis de Oliveira (Yayasan Hak) and Sister Maria Lourdes

Three human rights principles should guide this process (a) the right to know (the identities of those who killed or disappeared loved ones and confessions of perpetrators), (b) the right to justice (perpetrators must be punished proportionate to their actions through due process of an international court or community process), (c) the right to compensation. Reconciliation is in danger of becoming the preserve of an elite who are unaware of the community processes being undertaken in districts like Ainaro and Oecusse. Reconciliation is being manipulated by political leaders. It is a problem for all East Timorese and must be undertaken at the community level. Mediators are needed, but this is not easy and requires courage.

 

6.6.1 Recommendations (Principles)

Justice is an essential component of reconciliation. Reconciliation should not facilitate or legitimate impunity.

Reconciliation in East Timor will not be complete if it addresses only issues and injustice in 1999. Reconciliation must also address injustice and issues during the whole Indonesian period and include all sides who have been involved, including East Timorese political parties and the international community.

Victims have a right to information and to compensation, rehabilitation and relevant support services.

East Timor has to be realistic about what it can afford economically. There should be an alternative mechanism to deal with less serious crimes.

The process of reconciliation requires

* community education and understanding of reconciliation and the history of the

political situation

* recognition and acknowledgement of mistakes

* willingness on the part of parties and political leaders to be sincere and honest and

to forgive

* the benefits to the individual, group, church, society and nation.

Reconciliation in East Timor should not be just an elite process. UNTAET should undertake a community education campaign and support a community process which operates at the grassroots and serves the needs of the people.

 

6.6.2 Recommendations (specific)

1. A truth and reconciliation commission should be established in East Timor.

2. This commission should also look at the involvement and responsibility of the international community for human rights violations over the last 25 years, as well as last year.

3. Historical records should be systematically assembled and properly housed.

4. Testimony collected by NGOs from victims, returnees and witnesses should be documented for the historical record.

5. Legal and other measures must be taken to protect witnesses, victims and the accused.

6. Offenders should receive counselling.

7. To meet the expectations of the East Timorese people, the international community should set a deadline for Indonesia to complete the trials of those responsible for crimes against humanity last year and if this deadline is not met or the process is not satisfactory an international tribunal should be established.

 

 

7. CONCLUSION AND FOLLOW UP

The workshop concluded with comments from John Pace and words of appreciation from Patrick Burgess, Head of the UNTAET Human Rights Unit, to the participants and to all who contributed to making the workshop a success.

The Workshop established a Working Group comprising the workshop organisers and discussion group moderators to finalise the text of the recommendations. The Working Group met twice following the Workshop to complete its work. The recommendations were translated into three languages (Tetun, Indonesian and English), formatted and distributed to the CNRT Congress held in Dili, 21-30 August, and to key participants in the Congress. The recommendations were also discussed in the Congress commissions where the Jurists Association gained the support of Jose Ramos Horta and others for a resolution to be put to the final Congress plenary endorsing the key recommendations and calling for the development of a human rights national action plan for East Timor.

Copies of the Workshop report and recommendations were also supplied to the following:

Workshop participants

East Timorese political parties

UNTAET District Human Rights Officers for distribution and discussion in the districts

International networks.

Strategies are now needed to ensure that there is (a) follow up to the proposal for a human rights national action plan for East Timor and (b) follow up on particular recommendations and the role of the Jurists Association and the UNTAET Human Rights Unit in this.

Before returning to South Africa, Johny de Lange held discussions on reconciliaton and constitution building with Fokupers, Yayasan Hak and the community in Liquica.

Pat Walsh

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