Comments on the U.S. Department of State
By La'o Hamutuk
La’o Hamutuk is a Timorese NGO which undertakes research, monitoring and analysis of development processes in Timor-Leste. In order to improve information and understanding of local conditions we would like to discuss some errors and omissions in the U.S. Department of State 2008 report on Human Rights Practices in Timor-Leste (also Tetum). We have also provided contextual information which can help to understand local conditions. We address our comments thematically.
We are happy to discuss these issues and clarifications further. La’o Hamutuk posts many documents, reports and analyses related to human rights in Timor-Leste on our website www.laohamutuk.org.
S. 1(d) Amnesty (Section numbers refer to the U.S. Department of State Report.)
Justice issues in Timor-Leste can only be understood in the context of the consequences of the near universal impunity for crimes committed during the Indonesian occupation. The international community’s failure to support Timor-Leste to achieve accountability for crimes of the 24 year Indonesian occupation has created a de facto amnesty. The bilateral Commission for Truth and Friendship, with its limited and weak mandate, was an exercise in diplomacy, rather than the pursuit of truth or justice.
There can be no rule of law unless people are held responsible for the crimes they commit. Justice is needed to make people feel safe, to heal and to plan for the future. The crimes of the Indonesian occupation were not only against the Timorese people, they were crimes against humanity and should be prosecuted in an international court with full international support.
S. 1(e) Denial of a Fair Trail
In 2008 the Timor-Leste government refused to adhere to the Court of Appeals ruling on the State Budget, and sacked the judge who wrote the finding. This was one of several examples of public officials politically interfering with, and discrediting, the court system. The Secretary-General of CNRT (the Prime-Minister’s political party) assumed this post without first resigning as President of the Superior Judicial Magistrates Council. The Council is responsible for managing the judicial system – including judge contracts. He continues in the role of President.
Under UN and bilateral Status of Forces Agreements, many internationals are immune from any civil or criminal action for wrongs they commit in Timor-Leste, on or off duty.
S.2 (a) “…a UN executive order decriminalizes defamation. However, an Indonesian penal code provision that criminalizes defamation also remains in place.”
The Timor-Leste Court of Appeals ruled against the UN executive order in 2004, based on legislative hierarchy.
“At year’s end the Ministry of Justice was pressing charges against a journalist under this defamation law…“
The Minister for Justice, not the Ministry, initiated charges against journalist Jose Belo.
S.3 Elections and Political Participation
Many laws are put before Parliament and for public consultation in Portuguese only, rather than the other official language of Tetum, which many more people understand. Laws are frequently passed which members of Parliament cannot read. Many laws, especially decree laws, are passed in secret, and are not circulated for public input.
“…The Law provides for criminal penalties for official corruption; however, the government did not implement the law effectively, and officials frequently engaged in corrupt practices…The country does not have financial disclosure laws…”
There is no anti-corruption law to provide a clear guide and obligation for appropriate conduct – especially important in a small island State such as Timor-Leste where everyone knows everyone. Contracts are agreed without public tender, given to companies headed by public official’s relatives, conflicts of interests abound and “commercial confidentiality” is invoked to keep these contracts secret and evade public scrutiny.
Many people in government, international agencies and the media do not consider State failures to respect laws, procedures and regulations as crimes. Corruption allegations often focus on dealings with Timorese businesses, although agreements with foreign companies in 2008 have been secret, maladministered and legally questionable. These include secret agreements with Malaysian and Korean petroleum companies, numerous agrofuels agreements and a $375 million contract for a heavy oil power plant with Chinese Nuclear Construction Company #22.
In October 2008 the Ombudsman reported on the maladministration of the GT Leste Biotech MOU with the Minister for Agriculture and Fisheries for a sugar cane plantation, sugar and ethanol processing plants, signed 15 January 2008. The report found that the Minister for Agriculture and Fisheries did not have the authority to make an agreement which related to regulations, licenses and responsibilities of other Ministries. The Ombudsman recommended that an agreement with GT Leste Biotech be authorized by each of the relevant Ministries. The Ombudsman also wrote that the MOU could violate people’s rights to land if it was entered into force with a contract.
S.1(f) Arbitrary Interference with Privacy, Family, Home or Correspondence
In 2008 two different bodies worked on a Civil Code (the Ministry for Justice) and the Transitional Land Law (“Ita Nia Rai” — a USAID funded land titling project). This led to a lack of coherence on issues such as customary land. Some fear Ita Nia Rai will not place collective rights on an equal footing with individual rights, particularly rights of customary land ownership and management. Aspects of the Ita Nia Rai program such as women’s land rights, have been inclusive, although there as been a lack of public consultation and information sharing with civil society and the public on broader issues.
In 2008 there was little public discussion or debate on land laws, which will likely be passed in 2009 and whose consequences will impact all levels of Timor-Leste society. In 2008 there were several government evictions, with more intended for 2009. These evictions often did follow due process or provide adequate, if any, compensation. The February 2008 contract between the Secretary of State for Energy Policy and Enviroenergy Developments Australia (EDA) provides EDA an option to buy land, violating article 54.5 of the constitution outlining that foreigners do not have the right to own land. It also names the government as an arbitrator in disputes over land sales between EDA and private land owners.
“…Many Dili residents arrived as internal migrants after 1999 and occupied empty houses or built houses on empty lots…”
Systematic TNI and militia terror forced people to flee their homes and communities as Indonesian forces destroyed 70% of Timor-Leste’s housing. Refugees or internally displaced people, is a better description of their circumstances.
Gender & Employment
S. 4 “…There were no reports of gender based employment discrimination; however, women usually deferred to men when job opportunities arose at the village level...”
Gender-based employment discrimination is rife in Timor-Leste at all levels. Men dominate the private, government and NGO sectors. There are few organizations with policies to engage women more equally — few offer targeted professional development or support for women to achieve management roles.
Government employment generation programs serve very few women. Government guest worker schemes have excluded women, and where women are considered in discussions on future programs these are in more economically vulnerable areas (such as tourism and hospitality), while men receive jobs in construction.
S.6 (b) “...There are no export processing zones…”
Although there are no formal export processing zones (EPZ) the April 2008 tax law slashed import, wage and corporate taxes to make the entire country a virtual EPZ. These will be cut even further as Timor-Leste continues its ASEAN accession process, eventually joining the ASEAN Free Trade Area.
“S.6(e) "…The labor code does not stipulate a minimum wage; however, employers generally used and employees expected a wage of $85 per month as a minimum standard…”
The RDTL government pays workers $2 a day ($3 in cities) to clean streets, which is less than this $85 figure.
Almost 80% of the work force are in agriculture, mostly subsistence agriculture and outside the cash economy.
S. 5 “…There were no reported cases of discrimination against persons with HIV/AIDS...”
Few people in Timor-Leste are aware of their HIV/AIDS status and AIDS deaths are misattributed to tuberculosis and other opportunistic diseases. A lack of information, testing, appropriate health care and community awareness of HIV/AIDS make it likely that HIV is far more widespread than official reports and statistics indicate. Without decisive action now, HIV/AIDS will kill many people.
Many human rights issues in Timor-Leste are not on the public written record. Much information that is available is not easily accessible, archived or circulated through the media. More accurate reporting requires extensive interviews and cross-checking, particularly in representing the human rights issues of more vulnerable people. This is particularly true of Timorese people in rural areas, who remain outside the spotlight of the Dili-centric media and development activities.
The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)