Countries at the Crossroads 2006 - East Timor

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

East Timor became fully independent in 2002 after more than 400 years of Portuguese colonial rule and 24 years of Indonesian occupation. Portuguese control was largely characterized by neglect, and when a new government came to power in Lisbon in 1974, it began decolonization.¹ The rapid development of indigenous political parties, as well as cross-border interference by Indonesia, interrupted this process. A brief conflict between the main political groups ended when the Revolutionary Front for an Independent East Timor (FRETILIN) declared independence on November 28, 1975. Independence was short-lived: on the morning of December 7, 1975, Indonesian troops landed in Dili and began an occupation that would cost up to 183,000 Timorese lives.²

Regime change in Indonesia in 1998 created the opportunity for new policy allowing the East Timorese to hold a referendum on whether to become an independent state or an autonomous region within Indonesia. Months of violence and intimidation marred the August 1999 UN-administered ballot, in which 78 percent of the population voted for independence.³ Anti-independence militias, supported by the Indonesian military, swiftly retaliated, unleashing a wave of violence that left more than 1,400 dead and half the population displaced.⁴ More than 70 percent of the country's buildings were completely or partly destroyed, and essential infrastructure was dismantled.⁵ A UN-mandated international military force arrived to restore order, and in October 1999, a UN administration was established to facilitate the transition to independence.

Today, East Timor has made significant progress toward democracy despite being Asia's poorest country.⁶ It has had to create the institutions of modern democracy from scratch with few indigenous resources and little experience. That it has come this far with little internal conflict or threat of disintegration is an almost unparalleled achievement. But much more time and support are needed to entrench the institutions of democracy, and there is a significant power imbalance in which the executive dominates. Understanding and implementation of the rule of law is poor, and the government is inadequately separated from the police.⁷ On paper, East Timor has many of the attributes of a modern democracy, such as constitutional protection of a wide range of rights. However, this is not reflected in daily life; the administration's lack of experience and understanding of how such rights are translated into practice tends to render meaningless those protections. The impact of this lack of capacity has become increasingly apparent as East Timorese institutions have assumed full responsibility for running the country.

Poverty also threatens these fragile gains. Transport and communications are difficult, infant and maternal mortality are high, and access to health care can be problematic. Many have no access to clean water, and few outside the two largest cities have regular electricity.

While the legacy of external control continues to shape politics and society, outstanding issues from the past will threaten the country's fragile stability unless resolved. The most pressing concerns include achieving justice for the atrocities and human rights violations from 1974 to 1999 in a way that is broadly accepted,⁸ dealing with the wide range of issues related to veterans of the resistance, and implementing an effective land and property title regime and a means for resolving disputes. Also crucial is the development of an effective strategy that enables East Timor and Indonesia to resolve problems without threatening their bilateral relations. Above all, efforts to ensure meaningful citizen involvement in the decision-making processes of government must be strengthened so the people can at last feel truly represented.

Accountability and Public Voice – 3.83

In August 2001, the United Nations sponsored a nationwide election for the Constituent Assembly, a transitional body charged with drafting the new constitution. The vote was contested by 16 parties; the majority party, FRETILIN, won 55 of 88 seats. In March 2002, the Assembly approved the constitution, which designated the president as head of state and a prime minister as head of government. The electoral law, through transitional arrangements in the constitution, provided the possibility for the Constituent Assembly to transform itself into the first parliament without another election. The members so voted, and on May 20, 2002, they became East Timor's first national parliament. New electoral laws are in the process of being drafted for the 2007 parliamentary and separate presidential elections.

Village (suco) and sub-village (aldeia) elections held on a rolling basis between December 2004 and September 2005 provided an insight into how the next national elections might unfold. They were run by the new State Technical Administration for Elections (STAE), which is part of the Ministry of State Administration. The National Electoral Commission, a body of prominent citizens appointed to these honorary positions, supervised the conduct of the polls. It is expected that both bodies will preside over the 2007 elections.

In general, the elections were rated free and fair although independent observation was limited. Alleged irregularities were referred to the Court of Appeal, and repeat elections for certain village councils were held. The most significant problem arose when the electoral authority enrolled voters according to the new delineations of sucos and aldeias, which resulted in some voters' enrollment in villages and sub-villages other than those in which they believed they lived. This problem was later resolved by ensuring that polling booths in each village had copies of nearby village rolls as well as their own.⁹ Consequently, fewer problems were reported in later rounds.

A major concern for political parties was the government's late presentation to parliament of the electoral law for the local elections and the lack of consultation and involvement of the other political parties and the public in its development. Although the law was promulgated more than six months before the first rounds, its full implications were not recognized. This resulted in some parties being unprepared for its requirements, especially the one calling for political parties to be registered in order to endorse candidates.

As the elections unfolded, the nongovernment parties began to allege abuses – including the failure to allow the nomination of several non-FRETILIN candidates, the late nomination of FRETILIN candidates, and the hiring of FRETILIN party members as casual electoral officers. The parties also alleged that government officials used government vehicles to campaign and that voters were warned that voting for a nongovernment party might mean that local development projects would not go ahead.

Some anxiety has emerged over the timing of the next parliamentary elections, reflecting uncertainty over orderly succession and transitional arrangements. Sections 75 and 93 of the constitution make it clear that parliamentary and presidential terms last up to five years; those of the current members of parliament (MPs) and the president began on May 20, 2002. The next elections must therefore be resolved in time to allow the new parliament and president to be sworn in by May 20, 2007. This anxiety has also been fueled by repeated statements from leading FRETILIN figures that theirs is the only party able to govern and that FRETILIN will be in power for the next 50 years. These statements and the conduct of some FRETILIN officials during the local elections, combined with the lack of public trust in the nation's new institutions, have helped create doubts about the fair conduct of elections.

East Timor has not experienced an election with a government in place. It has not yet established rules and procedures to regulate government behavior during electoral periods. For example, there is nothing to prohibit the incumbent government from entering into contracts during the election that bind subsequent governments. Clearly, this could produce results that run counter to the will of the people expressed during the poll.

Laws establishing the military and police prohibit partisan activities by members of the armed forces. Other groups that might exert undue influence in voter choice, such as economic groups, are small, unorganized, or so far uninterested in doing so.

Most opposition political parties were formed in 2001 and have created their internal structures, policies, and processes since then. They have few resources – financial or human – and are still struggling to establish themselves in the districts. The state of all opposition parties militates against any one of them, or even an alliance, having a real chance of winning control of the government. Political party development assistance has been relatively small. The reduction in size of the next parliament, in accordance with section 93 of the constitution, could weaken or destroy some opposition parties.

Development assistance has helped to strengthen the capacity of the government and the civil service. The same level of assistance has not been available to either the parliament or the judiciary, and this has contributed to an imbalance of power already inherent in the East Timor constitution and exacerbated by the weakness of the recently formed opposition parties. The government and donors have recognized this and are seeking increased assistance for the parliament and the judiciary.

The constitution provides for a semipresidential system with little real power in the hands of the president. The majority parliamentary party or alliance chooses the prime minister, who determines the membership, size, and structure of the government. The concept of the parliament as a check on government power is not fully understood here, and many members do not yet see such monitoring as being among their responsibilities. The FRETILIN members sometimes struggle with conflicting loyalties between the party, as represented by its most senior members in the government, and the parliament as the lawmaking authority. Recent amendments to legislation regulating protests and demonstrations that reduced the required minimum distance from public buildings for protesters and the acceptance of court-advised changes to make other aspects of the same law constitutional are encouraging signs that the parliament is beginning to understand its separate role.

Despite impediments to its development, the parliament has reached many milestones in its three years of existence. MPs across party lines are beginning to understand the elements of representative democracy and are growing louder in their demands for the resources to enable them to carry out their tasks. However, parliament lacks human and financial resources, making it difficult for members to develop and institute democratic processes. Parliamentary committees are still coming to grips with their roles and functions. Legislative scrutiny is rudimentary, and the lack of legislative drafting capacity means that amendments are rare. Legislation is prepared only in Portuguese, and not all MPs have parliamentary staff and/or the level of fluency required for proper scrutiny. Research staff are nonexistent, and library facilities are extremely limited. Records of committees' public proceedings and reports are not properly archived or publicly available. Vehicles to enable MPs to consult their far-flung constituents became available only in 2005 and are inadequate in number and quality. The immense barriers parliamentarians face in trying to perform the simplest of tasks discourage even the most dedicated from undertaking basic duties such as communicating with constituents.

Civil servants are recruited, promoted, and trained through a process that lacks transparency. Disciplinary procedures are opaque, particularly in the armed forces, and prompt much complaint and debate. Capacity and a professional service ethos will take time to build. Effective administration is further hampered by excessive bureaucracy, arbitrary and unclear rules, and a failure to delegate responsibility effectively. All of these issues are recognized and being addressed by the government in cooperation with the United Nations and donors.

Nongovernmental organizations (NGOs) have a self-administered registration system. Laws regulating NGOs have been in development for several years, and responsibility for them has been shifted among several ministries. Donors and funders of civic organizations are largely free of government pressure, although occasional government comments about the roles and functions of NGOs have caused concern and prompted speculation that future regulations may restrict their activities. The government develops policy and legislation largely in secret, providing little opportunity for civic groups to influence it. Further, the state does not have any institutionalized mechanism for hearing the views of NGOs, and there is little evidence that such a mechanism will be developed in the near future.

The NGO sector in East Timor lacks experience; NGO criticisms of the government have often been ill informed or much too personal. This is often due to the difficulty in obtaining even basic public information from state bodies. Draft laws and policies are not routinely circulated. Parliamentary committees examine all legislation within their areas of responsibility, but most committees do not seek public input. Public comment is usually sought on draft legislation only when there is significant donor support for its development.

The media has operated freely since late 1999; the constitution contains significant support for freedom of expression (sections 40 and 41). However, the new penal code, which has been developed through a closed process, criminalizes defamation. The new code, scheduled to enter into force in early 2006, is likely to reduce legitimate reporting and comment due to journalists' fear of imprisonment or financial penalties. Public figures have proved sensitive to criticism, threatening journalists and outlets. Civil servants and police officers acting without legal authority have even confiscated cameras from reporters.

Prime Minister Alkatiri claimed that criminalizing defamation was necessary because the Timorese media are immature. Lack of experience and economic capacity mean that research and fact-checking are less than optimal and that reporters can misconstrue stories. However, the media have a legitimate information-supplying and watchdog role in a modern democracy, and a tolerant approach to error should prevail until the media sector becomes more developed.

Still, the media face significant capacity and economic barriers that make their existence precarious and predispose them to errors. Three daily newspapers and a weekly are based in Dili, while community radio stations regularly operate in most districts. Low literacy levels and publication language have impact on readership, and circulation is difficult. Widespread poverty means that buying a paper is an unaffordable luxury for most. There are no laws regulating the Internet, although limited and expensive telephone coverage and poor electricity supply affect access.

A partly government-funded public broadcaster provides nationwide radio coverage, but its television broadcasts are limited to Dili and Baucau. The public broadcaster has largely operated on a combination of a national budget allocation and donor funding, although it has earned some income through sponsored programs. The government has not used its budget allocation to influence program content.

The public broadcaster is obligated to reflect cultural traditions and expressions in its programming and has made some effort to do this within a very small budget. There are no legal impediments to freedom of cultural expression, and music, poetry performance, storytelling, photographic and other visual art exhibitions are thriving. Economic constraints are the main barrier to publication of written works. Laws regulating other broadcasters are being developed, and no licensing regulations apply to the print media.

Recommendations

• The government should release a draft electoral law for wide public comment well before the 2007 elections. The parliament should seek donor funding for expert analysis and commentary on the draft.
• The electoral law should provide clear guidelines for dealing with the use of government resources, including salaries and transport, as well as an accessible mechanism for complaints.
• The government needs to seek more input from various nongovernmental groups in the development of policy and legislation.
• Increased development support should be allocated to the national parliament, possibly to coincide with the preparation of the next parliament following the 2007 elections.
• The government should decriminalize defamation. Any new legal protection of personal reputation should be developed in consultation with the media, should take into account the media's real financial capacity, and should emphasize corrections and apologies rather than penalties.

Civil Liberties – 4.64

East Timor has ratified all major international human rights treaties, including the treaty on torture, and has incorporated into its constitution the obligation to assess rights judicially in line with those treaties.¹⁰

A 2005 research study that analyzed documents dealing with war crimes committed between 1974 and 1999 found that the transitional justice system instituted to deal with serious crimes had failed to fully investigate and prosecute allegations of torture within its mandate.¹¹ It also noted that the judicial and prosecutorial approach to torture was out of line with standards in treaties East Timor has joined. Reports of serious beatings and other maltreatment of prisoners and police suspects increased during 2004 and 2005.¹²

Prison conditions are comparable with the very basic living standards generally prevailing in East Timor. The ratio of prison officers to inmates is reasonable by regional standards, and there are few reports of violence inside prisons, although a complaints mechanism is lacking. Prison officers are receiving training across a range of issues. Access to prisons is allowed to independent observers but is discretionary. Some concerns have been raised over the housing of juveniles with adults and the internment of minor offenders with serious habitual violent criminals.¹³

In districts without detention facilities, detainees may be locked in offices or other unsuitable locations while in police custody, and no budget is provided for food or transport for these detainees.¹⁴ This has sometimes resulted in a reluctance to detain people or privation for detainees. Improvements in devolution of responsibility and budgets are being implemented.¹⁵ Problems in the judicial system have contributed to excessive time in pretrial detention for many alleged offenders. A system for reducing excessive pretrial detention was introduced in late 2005.

Several people from dissenting political groups have been arrested on dubious legal grounds, although few successful prosecutions have been reported.¹⁶ Public figures have done little to address this problem. Arrests on spurious grounds may be due to a lack of police knowledge, but they point to the potential for the abuse of the power of arrest.

Laws protecting people from abuse by private and nonstate actors are in place, but the civil court is barely functioning due to a paucity of human and financial resources. Complaints procedures for people who feel their rights have been violated by the state are beginning to be put in place. The police have developed a complaints procedure, although the process is still unclear. An ombudsman's office has been established that will begin receiving complaints in 2006. Some abuses of government processes can be reported to the Office of the Inspector General.

Gender equity is enshrined in the constitution, but some traditional practices will take time to change. The Office for the Promotion of Equality actively raises relevant issues, and political and civic leaders make positive statements about equality, although these have yet to be translated into widespread concrete action. While the civil service has no barriers to women's entry, few women hold senior positions. Women are less likely to receive job offers than men, as they are generally less well educated and are pressed into domestic and family support roles, but there is little public discussion about this lag.

Political parties included many women on their party lists for the 2001 elections, with the result that they hold 26 percent of parliamentary seats. However, no women preside over committees or fill other senior parliamentary positions. There is some discussion inside political parties about how to ensure that women are represented at senior levels. This will be especially important when the parliament is reduced after the 2007 elections.

The incidence of domestic violence is very high. The problem is well recognized, with public education campaigns backed by strong statements of support from political and other leaders. Surveys show that the police view domestic violence as a serious crime, although they tend to prefer using customary law to resolve it. Familial relationships and local power plays can influence decision making in customary law, which is usually arbitrated by local male leaders, further disadvantaging women and doing little to change the behavior of perpetrators. The number of successful prosecutions in the formal system therefore remains low, with little impact on public awareness and deterrence. The inconsistencies in imposed sentences also point to a range of different perceptions about the severity of domestic violence as an offense.¹⁷

Prostitution is illegal but thriving. A report from the Alola Foundation showed that trafficking in women and children into East Timor does occur, mainly from Indonesia, Thailand, China, and the Philippines.¹⁸ The National Parliamentary Committee on Foreign Affairs, Defence and National Security investigated information received about trafficked women and children working as prostitutes in Dili. Their inquiries revealed that police are aware of the problem and that some women have been detained, although it is not clear whether they were prosecuted, convicted, or legally deported. No legal action has been reported against traffickers or brothel owners.

The constitution guarantees basic human rights in line with the major international human rights treaties; however, most are not yet reinforced by subsidiary legislation. Language remains a great source of discontent among the general population. None of the indigenous languages are taught in the education system, and few are transmitted in a written form. Early primary education is delivered in Portuguese, which is understood by fewer than 20 percent of people in the country; later education is delivered in Bahasa Indonesian, which older students still find most comfortable for reading and writing. Furthermore, much government information is produced in Portuguese, prompting negative responses from many East Timorese who consider it a foreign language. Tetum, the most widely understood language, is still developing a standardized written form, largely because the country's colonial rulers ignored it.

Although there are at least 13 different indigenous languages, the East Timorese generally consider themselves fairly homogeneous. There is a small ethnic Chinese minority, and a difference between people from the east of the country and those from the west is traditionally recognized. However, issues of ethnicity are rarely raised.

Conditions for people with disabilities are very difficult. In some cases, especially those involving chronic mental health conditions, communities do not understand the needs of disabled individuals. Poverty and a dearth of facilities for care compound these problems.

While the overwhelming majority of East Timorese identify as Catholic, there are also groups of Protestants and Muslims, and all can freely practice their beliefs. Although some reports of tensions resulting from proselytizing and conversions by Protestant preachers have surfaced, particularly in the Liquiçá district, no serious incidents have occurred.¹⁹

The state refrains from involvement in the internal affairs of religious organizations and places no restrictions on observance or ceremonies. Large public demonstrations occurred in Dili in April and May 2005, when the Catholic Church objected to government plans to make religious education optional in state schools. After 20 days of peaceful demonstrations, which involved thousands of people, the government and the church negotiated an agreement so that schools would offer religious education and parents could decide whether to send their children to those classes.

Freedom of association and assembly is guaranteed by the constitution (sections 42 and 43) and regulated by subsidiary law. Trade unions are legally protected, and citizens are not compelled to belong to any associations directly or indirectly. Laws regulating NGOs and other associations are yet to be developed, although provisions in the immigration and asylum law restrict some activities of noncitizens, and the formation and organization of political parties is regulated. Business and professional associations are unregulated. A draft law on a bar association has been criticized as fundamentally flawed because it gives the government too much say over private lawyers and because interested parties have not been involved in its development.²⁰

Demonstrations and public protests are regulated by law and must be authorized in advance.²¹ Two days of rioting in December 2002 prompted the government to be wary of future protests, but a forceful clampdown on a peaceful protest by veterans in mid-2004 provoked much public discussion and condemnation of police violence. The April 2005 Catholic Church demonstration stoked fears of a repeat performance, but the government and police remained calm, allowing the demonstrators to protest in a peaceful and orderly manner.

Recommendations

• Further training of police is required to reduce the number of people arrested and detained on spurious grounds.
• Continuing programs are needed to monitor and reduce pretrial detention periods.
• The government should make a greater effort to publish all public information in the most widely understood language in East Timor, Tetum.
• Efforts to combat trafficking of women and children should be increased and should focus on prosecuting those who profit from it.

Rule of Law – 3.81

At independence, East Timor inherited existing Indonesian law and received a new constitution, as well as a series of regulations and directives issued under the UN administration. Most laws introduced since independence are based on models from Portuguese-speaking countries and are published in Portuguese only.²²

Timorese people had never held senior civil service positions under Indonesian rule, so none had experience as judges. As of the end of 2005, all indigenous judges were in full-time training initiated after they had failed a standardized qualification examination for the bench in late 2004. The district courts are now presided over by five international justices from Portuguese-speaking countries, none of whom speak Indonesian.²³ Two Timorese judges sit on the Court of Appeal, as it is illegal for this court to convene without an indigenous judge. However, their qualifications are questionable as they also failed the examination.²⁴

Infrastructure damage and the lack of organizational and administrative capacity inhibit the functioning of the district courts outside Dili. In 2004 and 2005, these courts began to operate, noticeably improving the speed of justice, although a backlog of about 3,000 cases remains.

Unlike during the occupation, a judgment cannot easily be bought in East Timor, but some allegations of corruption have been made against certain court actors, mainly prosecutors.²⁵ The main factors affecting the independence of the judiciary include the single, government-provided training option; the concentration of administrative power in the position of chief justice of the Court of Appeal;²⁶ the lack of sufficient resources for the courts; and the low level of capacity among many of the court actors, including judges, prosecutors, public defenders, and clerks. There are no reports of direct interference with judicial decision making by the executive or legislative branches, nor by other influential sectors of society.

Judicial decisions have little impact on the way civil servants carry out their daily tasks. Few cases have occurred in which a judicial decision was contrary to government policy, but in the most significant case, when the Court of Appeal decided that Portuguese law was applicable, the government and parliament both responded by writing a new law to make it clear that Indonesian law was applicable.

The judicial appointment, promotion, and dismissal system remains untested, and the adequacy of the training system cannot yet be judged as no one has thus far qualified based on it. The hybrid legal system and the history of judicial appointment have made consistent knowledge and application of the laws difficult.

The presumption of innocence is guaranteed by the constitution (section 34) and reinforced in the new penal code. However, timely court appearances, especially bail hearings, have been difficult to attain. This problem has been recognized, and many improvements have been made, although delays can still occur. The lack of judges has had a negative impact on the speed of trials, especially in the outer districts. District courts have also suffered from problems associated with poor electricity supply, a lack of administrative capacity, and difficult transport and communications, which may mean, for example, that accused people and witnesses are not notified of court dates.²⁸ Proceedings are generally held in public unless there are good legal reasons not to, and public defenders are part of the legal system.²⁹ While they are undertaking compulsory training their role has been filled by private lawyers; there is some concern that a new law regulating the bar association could affect their ability to act as public defenders.

In general, prosecutors act independently of government control. However, the government's unwillingness to prosecute senior Indonesian figures over their alleged roles in the violence of 1999 has led the prosecutor general to abstain from issuing arrest warrants. As well, criminal accusations against some government figures have not been transparently investigated. The Office of the Inspector General has carried out many inquiries into allegations involving public officials, and 11 cases have been referred to the prosecutor, but no further progress has been reported.³⁰

The need for the security sector to be accountable to civilian authorities is entrenched across the senior command of both branches of the armed forces and by their civilian leaders in government and parliament. Decrees establishing both armed forces reinforce civilian primacy; citizens understand that members of the armed forces are not above the law. The negative experience during the occupation has resulted in an active understanding that the armed forces should not be partisan, and this is reinforced by the constitution and subsidiary law. Generally, the police and military refrain from interference in politics; however, exceptions do occur.

Virtually all levels of the police lack a consciousness that officers who act criminally should be liable to court as well as disciplinary proceedings. Police disciplinary procedures are unaccountable, opaque, and secret. The rights of nonpolice complainants have not been properly addressed, and complaints procedures are unclear and unpublicized.

Public complaints about the behavior of military officers are rare except for the continuing cases of violence between members of the two armed forces branches. An independent inquiry into the military (FALINTIL-FDTL) following one of the most severe of these incidents of violence between the two armed forces, on January 25, 2004, resulted in a series of recommendations, many of which could be implemented within current resources, including the development of manuals, the production of material in Tetum, and the overhaul of the promotions system.³¹

Land and property ownership is a major challenge for lawmakers, which affects both internal stability and future economic growth. During the Portuguese period, Portuguese land law existed alongside customary law. When Indonesia invaded, its legal regime applied to land; however, customary and traditional law continued to apply in some places. Many people were displaced during the occupation. Some property previously owned by the Portuguese government or by Timorese people who had fled the Indonesian invasion was taken over by the Indonesian administration or by Indonesian or other Timorese individuals. Property might have been divided, modified, improved, and sold during that time. In the violence that followed the ballot in 1999, most buildings and records were destroyed. After the restoration of order, most people returned, including those who had been in exile for more than 20 years. Many properties are now subject to competition for ownership by claimants asserting title obtained through different means conferred in different eras.³²

The constitution (section 54) entrenches the rights of East Timorese nationals to own property and to transfer it during life or at death and for fair compensation for compulsory acquisition of private property. Communal land use exists in many areas, with exploitation of resources and stewardship responsibilities locally recognized as vested in certain communities.³³ Subsidiary legislation covering land ownership, leasing between private individuals, and administration and leasing of state-owned property has come into effect. Laws to complete the process of land regulation – on land dispute mediation and on property transfer, registration of preexisting rights, and title restitution – are under government consideration.³⁴

Disputing claims to land have been registered, and several cases are before the courts, although criminal cases are prioritized. One case of disputed ownership received a great deal of publicity because one claimant is a prominent opposition party leader and the other is the government. The government forcibly removed the opposition leader, who had lived in the house since Indonesian times. Political motives were debated, but the case is progressing slowly through the courts like other civil cases. Mindful of the instability it could engender, the government is generally reclaiming property over which it asserts ownership in an orderly and gradual manner. Due to the general lack of progress in civil matters, no trends in land claim decisions are discernible.

The constitution guarantees equality before the law for all citizens and prohibits discrimination on the grounds of color, race, marital status, gender, ethnic origin, language, social or economic status, political or ideological convictions, religion, education, and physical or mental condition (section 16). In practice, exercising these rights is more difficult for those with low literacy and education levels or who do not speak Portuguese, Tetum, or Bahasa Indonesian. Subsidiary laws on discrimination have not yet been drafted. The human rights ombudsman will report to the parliament.

Recommendations

• Findings of all investigations by the Office of the Inspector General should be made public unless it would prejudice a fair trial, in which case publication should be delayed rather than abandoned.
• Police disciplinary procedures need to be opened up; those suspected of committing crimes should be investigated and prosecuted.
• A police complaints system open to the public and responsive to complainants should be established and publicized.
• The laws to complete regulation of land and property should be implemented as a priority and the operation and administration of the land law system publicized.

Anticorruption and Transparency – 2.62

Business and other transactions with the government are frequently complicated by opaque requirements, heavy bureaucracy, and arbitrary rules not based in legislation. For example, as part of the complicated transitional approvals process for work permits for in-country foreign nationals, the police required a color passport-style photograph of the applicant wearing a bowtie and jacket. The government aims to develop a one-stop shop for customs clearance, which would remove the need for obtaining separate approvals by a range of ministries, each of which can have different and/or overlapping requirements, an example that could be usefully repeated in many other areas.

The government has created a free-market economic system and has proved very resistant to frequent demands by interest groups seeking government intervention in the economy, for example, through food subsidies.

Measures to deal with conflict of public and private interests remain to be developed for both public and private sectors. People generally believe that government members and senior civil servants profit from their offices, although this is unproven, as no cases have been prosecuted through the courts. The Office of the Inspector General has referred at least 11 cases to the prosecutor general, but at the time of writing no further movement had been reported on those cases. The general suspicion of the population has been reinforced by a number of incidents, such as the prime minister's brother winning a monopoly contract to import various arms and other materiel including tanks and helicopters for the military, which highlight the need for transparency. Financial disclosure procedures for government members, members of parliament, and other holders of public office have been discussed but not developed.

The parliament has passed legislation creating the civil service, introducing disciplinary procedures, and establishing a code of ethics. Allegations of corruption may be reported to and are investigated by the Office of the Inspector General.

Citizens are highly aware of the illegality of bribery, which was a particularly detested feature of the Indonesian regime. Solicitations are generally refused and exposed; they have not been publicly reported in the higher education system.

The constitution provides for a High Administrative Tax and Audit Court to monitor public spending and audit state accounts (section 129), but as it is not yet established, the Ministry of Planning and Finance currently performs the audit function. This court will also have responsibility for appeals against judgments made in relation to decisions by civil servants and organs of the state.

Legislative and administrative processes to prevent and punish corruption are still being developed. Public officials have yet to develop a high level of corruption awareness and procedures to combat it. The main corruption watchdog, the Office of the Inspector General, has made efforts to become more open over the course of 2005. This office is very active; it can now refer cases directly to the prosecutor general, strengthening its independence. As it reports to the prime minister, it is unclear whether the office is subject to political pressure or whether allegations are investigated without prejudice. Whistle-blower protection legislation has not been developed.

Allegations of corruption are often aired in the media, but follow-up to these allegations is rarely publicized. This has a negative impact on those implicated and reduces public confidence in the system.

Public access to government information is severely limited; gaining access to specific documentation that should be publicly available is very difficult. The resources and capacity to provide information are lacking. Moreover, most officials tend not to perceive the benefits of providing information to the public. Freedom of access to personal stored information is guaranteed by the constitution (section 38), but subsidiary enabling legislation remains undeveloped. Most civil servants refuse to release information unless their superiors formally instruct them. No special arrangements are made to ease access to information for people with disabilities.

The national budget is drawn up through a comprehensive, closed internal process that has not been publicly explained. Parliament is routinely given only two to three weeks to scrutinize budget documents, and this always provokes complaint. Ministers were previously called in by parliamentary committees to explain the details of the budget, but in 2004 the government halted these appearances. For the past two budgets, the prime minister and the finance minister have answered questions before the parliament as a whole, a forum that is not conducive to the detailed questioning of line items required. Parliamentary committees have yet to seek alternative sources of information, such as from civil servants or interest groups. Interest groups have difficulty obtaining an advance copy of the budget, so trying to influence the debate would be virtually impossible. In any case, the capacity of most groups to undertake this work is limited.

The published financial information in the national budget lacks the detail necessary for appropriate scrutiny. The information is provided through the publication of the legislation and through the World Bank, which has been assisting the government in this area.³⁵

The government contracting and tender procedure is not open. Tenderers likely to win government contracts often have family or other ties to leading government or other public figures, increasing public distrust of the system.

Foreign assistance has directly funded the national budget and contributed to reconstruction, with information on gross amounts publicly available. Nongovernmental and other organizations have access to development assistance from a range of overseas donors and agencies without government intervention or legal impediment, except for restrictions on some funding of political parties.

Recommendations

• Financial disclosure procedures need to be developed so that the financial interests of senior officeholders and members of government and parliament are made public.
• Conflict-of-interest provisions for the public and private sectors must be formulated and routinely implemented.
• The parliament should implement a better budget scrutiny process, which would include input from civil servants and interest groups.
• Clear and transparent procedures must be developed for government tendering and contracting; information about successful tenders, as well as an explanation of why the bids were accepted, should be made public.

Author

Karen Polglaze first traveled to East Timor in 1998 as a correspondent for Australian Associated Press. She reported on the conflict in 1999 and returned to East Timor in 2001-02 as an adviser for the Timor Lorosa'e Journalists Association. From 2003 to 2005, she managed the National Democratic Institute for International Affairs Security Sector Reform Program in East Timor, working with parliament, the government, and civil society.

Notes

1 For East Timor's history, see J. Dunn, Timor: A People Betrayed (Brisbane, Australia: Jacaranda Press, 1983), or J. G. Taylor, Indonesia's Forgotten War: The Hidden History of East Timor (Sydney, Australia: Pluto Press, 1991).

2 P. Walsh, "Media Misrepresentations of the CAVR Report," e-mail circulated by the East Timor Action Network, 4 January 2006. The report of the Commission for Reception, Truth and Reconciliation (CRTR), which has the most accurate estimates of the number of conflict-related deaths from 1974 to 1999, was not available at the time of writing, although some information has been made public.

3 Summary of the Report to the Secretary General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999 (New York: UN Security Council, 26 May 2005), 9.

4 Ibid.

5 "At a Glance: Timor-Leste," in State of the World's Children 2006 (New York: UNICEF), http://www.unicef.org/infobycountry/Timorleste.html; Strategy for Timor-Leste FY 06-08 (World Bank), 1.

6 World Bank Country Assistance Strategy for Timor-Leste FY 06-08 (Washington, D.C.: World Bank, Report No. 32700-TP, 18 August 2005), 15.

7 Report of the United Nations High Commissioner for Human Rights on Technical Cooperation in the Field of Human Rights in Timor-Leste (New York: United Nations Economic and Social Council [UNECOSOC], Commission on Human Rights, 22 March 2005), 6.

8 Much has been published about efforts to deal with the violent crimes of 1974 to 1999 in East Timor. The report of the Commission of Experts, cited above, provides a wealth of information. East Timor truly stands at the crossroads over the soon-to-be published report of the CRTR. The president and the government are urging East Timorese people to look toward the future and not to seek retribution for the violent crimes Indonesia and some East Timorese committed in the past. This is because they believe that a peaceful future depends on harmonious relations with Indonesia, which has refused so far to cooperate with any serious effort to bring the perpetrators of these crimes to justice. It is doubtful whether most ordinary East Timorese people agree with this position; events since October 1999 have reinforced their expectations that the perpetrators would be punished. This is a very difficult issue for all in East Timor. The international community also has a stake in bringing human rights violators and war criminals to justice. Efforts to find a way forward should include significant public education and involvement in decision making so that the threat of disintegration is minimized. The international community must support these efforts.

9 K. Annan, End of Mandate Report of the Secretary-General on the United Nations Mission of Support in East Timor (New York: UN, S/2005/310, 12 May 2005), 1.

10 Treaties ratified by East Timor can be traced through the official government gazette, Jornal da Republica, http://www.mj.gov.tl/jornal/.

11 Torture and Transitional Justice on Timor Leste (Dili, Timor Leste: Judicial System Monitoring Program [JSMP], April 2005), 13-25, http://www.jsmp.minihub.org.

12 "Progress Report of the Secretary-General on the United Nations Office in Timor Leste (for the period 13 May to 15 August 2005)" (UN, 18 August 2005); Report 2005: Timor Leste, "Covering events January-December 2004" (London: Amnesty International [AI]), http://web.amnesty.org/report2005/tmp-summary-eng; "East Timor," in World Report 2005 (New York: Human Rights Watch [HRW], 13 January 2005), http://hrw.org/english/docs/2005/01/13/eastti9825.htm.

13 Technical Cooperation in the Field of Human Rights in Timor-Leste (UNECOSOC), 5. Additional information supplied to the author by expert visitors to the prisons.

14 Information provided to public hearings held by the National Parliamentary Committee on Foreign Affairs, Defence and Security; World Report 2005 (HRW).

15 Strategy for Timor-Leste FY 06-08 (World Bank), 9.

16 Technical Cooperation in the Field of Human Rights in Timor-Leste (UNECOSOC), 7.

17 Police Treatment of Women in Timor Leste (JSMP, January, 2005); Women in the Formal Justice Sector: Report on the Dili District Court (JSMP, 7 April 2004); Statistics on Cases of Violence Against Women in Timor Leste (JSMP, February 2005).

18 Trafficking in Timor-Leste: A Look into the Newest Nation's Sex Industry (Dili and Melbourne: Alola Foundation, October 2004), http://www.alolafoundation.org/HT%20report.php.

19 This information was reported by community leaders at a public hearing with the National Parliamentary Committee on Foreign Affairs, Defence and National Security in Liquiçá in 2004.

20 "The Government Seeks to Regulate Private Lawyers" (JSMP, press release, 27 May 2005).

21 For an analysis of this law see the Report on Draft Law 29/I/3A: Freedom of Assembly and Demonstration (JSMP, October 2004).

22 "Recent Developments in the Courts," Justice Update (JSMP) 22/2005 (October/November 2005). Language difficulties beset all aspects of life in East Timor, but this is especially apparent in the judicial system. Most of the law that applies in East Timor is still Indonesian law, and none of the international judges speaks Indonesian; however, English copies of the laws are reportedly available. Timorese judges, public defenders, and prosecutors were largely educated in the Indonesian system but were given some short, but intensive, Portuguese training before they sat the qualifying examinations in 2004 (which all judges failed). The training is being delivered in Portuguese. JSMP has noted that court actors who have been working alongside international staff do not appear to be significantly influenced by the training, probably because their Portuguese is not yet adequate. It is unlikely that many of the defendants speak Portuguese, and while interpreters are provided, many accused would not speak Tetum or Indonesian either. Legislation is published in Portuguese, which means that ordinary people are unlikely to understand it, in the improbable event that they are able to get a copy and, importantly, neither are police officers, who are also not likely to see copies of legislation, as the only method of circulation appears to be the Jornal da Republica (government gazette), which is not widely available. The electronic version is often out of date and not accessible to most people, who have no electricity or telephones. See also The Impact of the Language Directive on the Courts in East Timor (JSMP, Report, August 2004).

23 "Recent Developments in the Courts," Justice Update 22/2005 (October/November 2005).

24 "Continued Trial of Serious Crimes Suspects," Justice Update 16/2005 (August 2005): 3-4.

25 Strategy for Timor-Leste FY 06-08 (World Bank), 5.

26 Overview of the Justice Sector: March 2005 (JSMP, March 2005), 25.

27 See, in general, Justice Updates (JSMP).

28 "Recent Developments in the Courts," Justice Update 22/2005 (October/November 2005).

29 "Closure of Detention Review Hearings," Justice Update 15/2005 (15-25 July 2005).

30 Background Paper for the Timor-Leste and Development Partners Meeting (World Bank, 25-26 April 2005), 8.

31 X. Gusmao, "On the Findings of the Independent Inquiry Commission (IIC) for the FALINTIL-FDTL" (Washington, D.C.: East Timor and Indonesia Action Network, press release, 24 August 2004), http://www.etan.org/et2004/august/22/24onthe.htm.

32 Land Law Report (JSMP, 27 September 2005).

33 C. D'Andrea, The Customary Use and Management of Natural Resources in Timor-Leste (Fitzroy, Victoria, Australia: Oxfam, November 2003), http://www.oxfam.org.au/world/asia/east_timor/reports.html.

34 Land Law Report, (JSMP, 27 September 2005).

35 An example of the Timor Leste national budget can be downloaded at http://extsearch.worldbank.org/servlet/SiteSearchServlet?q=Timor%20Leste%20budget.