[INTRODUCTION]
EAST TIMOR
(Huridocs Code: 7523)
1. BACKGROUND DATA
Location: South-east Asia
Area: 14,874 sq. km.
Population: 714,847
Dominant religion:
Christianity (Roman Catholicism)
Official Language: Bahasa Indonesian
2. CONSTITUTIONAL HISTORY
The island of Timor, of which East Timor forms a part, was first
colonised by the Portuguese in 1520. For the following three
centuries the Spanish, Dutch and British successively attempted
to colonise the island, but Portuguese sovereignty over East
Timor was affirmed by treaties in 1860 and 1893. During the
Second World War Timor was occupied by the Japanese, but the
Portuguese regained possession of East Timor after the war. In
1975, as part of its policy of de-colonisation, Portugal
manifested its intention to withdraw from the province, and this
led to political discussions about the future of East Timor both
within and outside the colony. The process became confused and
ultimately violent, with a civil war ensuing between the Uniao
Democratica Tomorense (UDT), a political group which favoured
some form of continued links with Portugal, and the Frente
Revolucionaria Timor Lest Independente (FRETILIN), a left-wing
movement which advocated complete independence. FRETILIN on 28
November 1975 issued an unilateral declaration of independence
and proclamed the establishment of the Democratic Republic of
East Timor. This was promptly followed by a joint statement by
all the other political parties in the province also declaring
independence from Portugal but affirming simultaneous integration
with neighbouring Indonesia. On 7 December 1975 Indonesia sent a
huge contingent of troops to East Timor and took over the
province by force. It subsequently passed a law on 17 July 1976
proclaiming East Timor as the 27th province of Indonesia. This
annexation of East Timor has not been recognised by the United
Nations.
3. NATURE AND SCALE OF THE CONFLICT
The conflict in East Timor owes its origin to the East Timorese
people's demand for self-determination and the consistent refusal
of Indonesia to recognise that demand. It also derives from the
heavy-handed military security approach that the Indonesian
government has traditionally adopted in dealing with secessionist
movements within that country.
The invasion of East Timor in December 1975 was accompanied
by considerable violence on account of the fierce resistance put
up by FRETILIN forces in and around the capital Dili. Indonesian
troops also reportedly indulged in gratuitous killing of the
civilian population, and several hundred people are believed to
have been shot dead in the first few weeks alone. Many families
were allegedly shot for displaying FRETILIN flags on their houses
or for refusing to hand over their personal possessions. The
relatively prosperous Chinese population, numbering about 20,000,
was a particular target of such violence. As the opposition from
FRETILIN forces showed no signs of decreasing, the Indonesian
army intensified its campaign which soon developed into a
protracted and bloody war involving, among other things,
saturation bombings of large parts of the province's territory
and forced resettlement of the population in the years to come.
Although the government was successful in subduing the
resistance for some time in 1980 - when it even decided to
abolish its East Timor military command and transfer control to
the army's eastern Indonesian zonal headquarters in Bali - the
FRETILIN attacks continued, and this led to frequent
reinforcement of government troops and counter-insurgency
exercises. FRETILIN forces too mounted regular ambushes of
Indonesian troops and were also reportedly responsible for
massacres in villages inhabited by the army. A unsuccessful
ceasefire was attempted in 1983 but it was broke down within
weeks and fresh hostilities resumed.
Simultaneously with the military campaign, the Indonesian
government launched a programme of forced integration of the East
Timorese population. This has included the imposition of Bahasa
Indonesia and the banning of the more widely used Portuguese
language in schools as well as re-education measures focussing on
the official Indonesian state ideology of Pancasila (which has
simply been described as the five principles of belief in one
God, humanitarianism, nationalism, democracy and social justice).
The government also encouraged large-scale migration to and
resettlement in East Timor of farmers from Indonesia while
maintaining strict controls on the entry of foreigners,
especially journalists and human rights researchers, into the
province.
Although the scale of human rights violations decreased
somewhat since 1989 (when the Indonesian authorities began a
policy of "opening up" East Timor to the outside world),
intimidation of the Timorese by the occupying forces continued.
The situation became particularly tense in October 1991 when it
was announced that a parliamentary delegation from Portugal would
be arriving in the province on 4 November on a fact-finding
mission. The local population reportedly planned
pro-independence demonstrations to coincide with the visit of the
delegation but these preparations were allegedly being monitored
by Indonesian army intelligence. On 28 October two Timorese men
who, along with some 20 other political activists were reportedly
hiding in a church in Dili, were shot dead in the early hours of
the morning, and it was widely believed that army agents were
responsible for the attack. The arrival of the Portuguese
delegation was subsequently postponed, but on 12 November a
memorial mass was organised in the Motael church in Dili for one
of the assassinated men, Sebastio Gomes Rangel, prior to his
funeral the same day. After the mass, a large procession began
moving towards the Santa Cruz cemetery in the capital and some
young people who had joined the procession reportedly began
shouting pro-independence slogans and displaying pro-FRETILIN
banners and flags. On reaching the cemetery, they hung banners,
waved flags and shouted slogans from one of its walls while
others went in and began saying prayers. Suddenly and without
warning or provocation, the security forces reportedly opened
fire on the crowd and began shooting indiscriminately. Many of
the Timorese were trapped within the cemetery walls and became
ready targets for the soldiers.
In the firing which lasted for some 2 or 3 minutes, some 100
people were reportedly killed. Official sources put the figure
of casualties at 19, but this is widely believed to be a gross
underestimate by eye-witnesses and others. The security
personnel involved in the incident reportedly belonged to the
700th and 303rd Indonesian battalions who had been accompanied by
police and intelligence agents along the route of the procession.
Following the swift and widespread international condemnation of
the incident, the Indonesian government on 18 November announced
the formation of a seven-member commission, headed by a former
judge and retired general, to carry out an inquiry. Although
this commission criticised the army for using excessive force and
estimated that up to 50 people may have died, it held that the
troops had been responding to "chaos or riot". The Indonesian
government punished some 19 army and police officers for their
role in the events. [see Remembering History in East Timor: The
Trial of Xanana Gusmao and a Follow-up to the Dili Massacre,
Human Rights Watch/Asia, New York, April 1993.]
The government also brought criminal charges against both
some of the protestors and army and police personnel involved in
the incident, although many of the protestors had been detained
without charge or trial for over three months. They were
eventually tried under procedures which were criticised by human
rights groups as being both unfair under international standards
and not in conformity with Indonesia's own Code of Criminal
Procedure [see, e.g. East Timor: State of Fear, Amnesty
International, London, July 1993, AI Index: ASA 21/15/93;
Indonesia/East Timor: A New Order? Human Rights in 1992, Amnesty
International, London, February 1993, AI Index: ASA 21/03/93],
and sentenced to prison terms ranging from nine years to life
imprisonment. By contrast, the security force personnel were
given sentences ranging from 8 to 18 months, mostly for
disciplinary, rather than criminal, offences.
On 20 November 1992 the military commander of FRETILIN, Jose
Xanana Gusmao, who had been underground for several years, was
captured by Indonesian soldiers on the outskirts of Dili. He was
charged with a range of offences including rebellion, conspiring
to organise secession and possession of firearms and, after a
trial which was judged unfair by many human rights monitors,
sentenced to life imprisonment on 21 May 1993. Gusmao's sentence
was reportedly reduced to 20 years' imprisonment by the
Indonesian president in August 1993. In November 1993 it was
reported that Konis Santana had taken over the military
leadership of FRETILIN from Gusmao.
It is believed that tens of thousands of people have been
killed and several hundred "disappeared" in the conflict in East
Timor since 1975. No accurate figures ar available of the
combatants involved in the fighting.
4. LEGAL STRUCTURES
(A) Ordinary Legal Structures
Indonesia's legal system, inherited from the Dutch and modified
since independence, is based essentially on the continental
European civil law model. A written constitution enacted in 1945
provides for a unitary state with an executive president elected
for a renewable five-year term. It also provides for a bicameral
legislature - the Majelis Permusyawaratan Rakyat (MPR, the
people's consultative assembly) and Dewan Perwakilan Rakyat (DPR,
the house of representatives) - but in practice legislative power
is often exercised by the president who issues decrees which are
rubber-stamped by parliament or through administrative
regulations made by the various cabinet ministries. Elections to
the legislature, which are held once every five years, are by law
contestable only by three recognised political parties. 100
seats in the DPR are reserved for the army which has a
socio-political role as well as a military one under the
legally-recognised doctrine of dwifungsi ("dual function"). The
national security and law enforcement agency, Bakorstanas,
co-ordinates the activities of the various intelligence and
security bodies and operates directly under the president. This
agency succeeded Kopkamtib, the government's main instrument of
political control since 1965. All citizens are required to
register as adhering to one of five officially recognised
religions: Islam, Protestantism, Roman Catholicism, Hinduism or
Buddhism.
The Indonesian judiciary is formally independent of the
executive, but has not been known to exercise real powers of
judicial review. There are three tiers of General Courts: the
Supreme Court, Court of Appeal and District Courts which deal
with both civil and criminal matters. Since 1991 complaints
against decisions of government officials are decided by the
newly created Administrative Courts. Matters relating to the
armed forces, including the police, are heard by the Military
Courts, while Religious Courts decide disputes involving Islamic
personal law. Most ordinary crimes are defined by a Criminal
Code (Kitab Undang-Undang Hukum Pidana - KUHP) of 1918 which is
supplemented by a criminal procedure code of 1981 (Kitab
Undang-Undang Hukum Acara Pidana - KUHAP). The latter code is
supplemented by Government Regulations No. 27/1983 issued by the
President of Indonesia on 1 August 1983.
In June 1993 the Indonesian government announced the
establishment of a national human rights commission (Komisi
Nasional Hak Asasi Manusia) headed by a former chief justice of
the supreme court. Though that body has been criticised by
international observers as being insufficiently independent of
the government and lacking the necessary powers to carry out
truly effective monitoring and investigation of human rights
violations [see, e.g. One Step Forward, Two Steps Back:
Indonesia's National Commission on Human Rights, Lawyers
Committee for Human Rights, New York, July 1993], it has, during
the first eight months of its working, disproved some of its
critics' worst fears and at least served as an important agent
for pressure for improvements in the government's human rights
record. [see "The Indonesian Human Rights Commission: Weak But
Better Than Expected" in The Limits of Openness, Human Rights
Watch/Asia, New York, September 1994.]
Indonesian law allows for administrative detention for up to
120 days. During the first 20 days of administrative detention,
the detainee may be denied access to any judicial authority. In
practice, detainees are also usually denied access to a lawyer
during that period, despite being entitled to such access in law.
The administration in East Timor is headed by a governor
appointed by the Indonesian government for a once-renewable term
of five years. There is also a provincial legislature with 45
seats, 9 of which are reserved for the armed forces. The
province is divided into 13 regions, each headed by an
administrator. Any legal measure passed by the provincial
legislature has to be formally approved by the president.
(B) Emergency Legal Structures
As far as is known, formal emergency powers have been used in
East Timor only once, in September 1983. For most of the rest of
the period during which the province has been under Indonesian
rule, the government has applied quasi-emergency laws and
procedures which have been on the statute book for several years.
The formal power to declare a state of emergency is
contained in Article 12 of the Indonesian Constitution which
confers that power on the President and provides for the
conditions governing the state of emergency to be prescribed by
statute. Article 22 of the Constitution allows the president to
rule by decree "should conditions of crisis make it necessary".
Any such decree has to be subsequently approved by the DPR. [For
full text, use keyword: CONSTITUTION]
The rules and procedures governing the declaration of states
of emergency are contained in the Law on States of Emergency of
1959 (Presidential Decree No. 23/PRP/1959) which allows the
President to declare all or any part of the country to be under a
state of civil emergency, military emergency or war situation if
the security of, or law and order in, the country is threatened
or likely to be threatened by rebellion, riot, natural disaster,
war or other circumstances. A state of emergency so declared may
continue for an indefinite period and can only be terminated by
the President. This law also provides for the appointment of
various committees to enforce the emergency under the overall
supervision of the President and confers wide powers of arrest,
search and seizure, censorship of the mass media, interception of
communications and restriction of freedom of movement on the
government. [For full text in unofficial English translation,
use keyword: EMERGLAW]
The most prominent emergency-type legislation, albeit one
not widely used in East Timor, is the Anti-Subversion Law of 1963
(Presidential Decree No. 11/PPNS/1963) which characterises as
"subversion" a wide range of activities including action known or
likely to: distort, undermine or deviate from the ideology of
state policy; overthrow, destroy or undermine the power of the
State or the authority of the lawful government or the state
apparatus; disseminate feelings of hostility or arouse hostility,
cause splits conflicts, chaos, disturbances or anxiety among the
people or between Indonesia and another friendly state; or
disrupt industry or commerce. The law prescribes stringent
punishments, including death and fines of up to 30 million rupiah
for those convicted of such activities. The law also permits the
Attorney-General to order pre-trial detention of any person for
renewable periods of up to one year without recourse to a judge.
Several people have reportedly been held under this law in East
Timor. [For full text in unofficial English translation of the
relevant articles, use keyword: SUBVERSION]
A more common weapon used by the government to detain and
punish a large number of its peaceful opponents in East Timor is
the Criminal Code (KUHP). Hundreds of people have been held
under its provisions, notably Articles 106 and 110 which deal
with rebellion and secession and which allow for jail sentences
of between 20 years and life to be imposed on those convicted.
Other provisions of the Code that have been used incude Article
154 which makes it an offence to express "hatred or insult" of
the government and Article 155 which forbids the dissemination or
exhibition of expressions of hatred (known collectively as the
"hate-sowing" provisions, from the Dutch haatzai). These
offences carry penalties of imprisonment for up to seven years
and six months respectively, as well as unlimited fines. [For
full text of these provisions, use keyword: KUHP]
Another law which has been used to stifle dissent on a large
scale is the Law on Social Organisations of 1985 which imposes
stringent restrictions on the establishment and functioning of a
wide range of non-governmental organisations. Under this law,
all such organisations are obliged to adopt the officially
proclaimed ideology of Pancasila and to register with the
Department of Home Affairs. The government has untrammelled
powers to deny registration or to de-register existing
organisations. The enactment of this law was preceded by strong
popular opposition, especially from the Muslim community who
organised demonstrations against it; in one such demonstration
held in Jakarta government security forces reportedly shot dead
some 100 unarmed demonstrators. [For full text in unofficial
English translation, use keyword: SOCIALORGNS]
The government has also imposed sweeping controls on the
functioning of the mass media. Under the Basic Principles of the
Press (Act 11 of 1966) as amended in 1967 and 1982, all
newspapers, journals and other publications published in the
country are obliged to obtain a licence from the government and
to comply with a vaguely defined list of duties and "national
responsibilities", including adherence to the state policy of
Pancasila. This law has been supplemented by Regulations No.
01/PER/MENPEN/1984 issued by the Minister of Information on 31
October 1984, and by Ministerial Decision No 214A/KEP/MENPEN/1984
dated 30 November 1984, which prescribe the conditions and
procedures for the grant of such licences. Under these laws, any
publication deemed to conflict with Pancasila or considered as
not behaving "responsibly" is liable to be denied a licence to
publish or, in the case of an existing publication, to have its
licence revoked. [For full text of these laws in unofficial
English translation, use keyword: PRESSLAW]
Several newspapers have been penalised under these laws for
expressing views critical of the government. In June 1994, for
instance, the government revoked the publishing licences of three
leading news weeklies, Tempo, Editor and DeTik, on the grounds
that they had violated the journalistic code of ethics and
endangered national security. This led to strong protests from
both within the country and abroad. The licences were however
not reinstated. Earlier prominent victims of press censorship
included the Sinar Harapan and Prioritas newspapers whose
licences were revoked in October 1986 and June 1987 respectively.
In September 1990 the government ordered the closure of a tabloid
weekly, Monitor, following its publication of a public opinion
poll of well-known personalities in which the prophet Mohammed
came eleventh in popularity, after President Soeharto and a
leading rock music performer. The editor of the weekly was
arrested and sentenced to five years' imprisonment for blasphemy.
(C) Declarations/Derogations
As far as is known, only one state of emergency has formally been
declared so far in East Timor, on 9 September 1983. A copy of
that declaration is not currently available, nor is it known if
that state of emergency was formally terminated.
Indonesia is not a signatory to the International Covenant
on Civil and Political Rights (ICCPR) and so there are no
derogations entered under Article 4 of the Covenant. There is
also no relevant regional convention to which Indonesia is a
party.
(D) Relevant Judicial Decisions
It has not been possible to locate judgments, if any, of
Indonesian courts touching the declaration, enforcement or
termination of states of emergency.
5. HUMAN RIGHTS CONCERNS
The major human rights concerns have centred on the following
issues:
(a) Lethal force: alleged official policy of extra-judicial
execution leading to some 200,000 deaths of civilians in East
Timor since 1975; alleged use of indiscriminate and lethal force
on some 100 unarmed civilians attending a funeral at the Santa
Cruz cemetery in Dili in November 1991;
(b) Torture and ill-treatment: alleged systematic torture of
political detainees, including hundreds of suspected government
opponents detained in November 1991; alleged rape of several
women related to, or suspected of being, pro-independence
sympathisers;
(c) Detention and "disappearances": alleged illegal detention of
thousands of suspected government opponents under the
Anti-Subversion Law and other laws, often without access to
relatives and lawyers; alleged "disappearance" of scores of
suspected government opponents, usually after being taken in
custody by the armed forces;
(d) Unfair trials: alleged imposition of excessively harsh
punishment, including death, on hundreds of suspected government
opponents after trials lacking safeguards prescribed by
international human rights standards for fair trial;
(e) Suppression of freedoms: alleged large-scale suppression of
freedom of expression, e.g. by refusing or revoking licences of
newspapers which publish matter critical of the government;
alleged large-scale suppression of freedom of association, e.g.
by prohibiting the formation or functioning of independent trades
unions and other non-governmental organisations; alleged
widespread suppression of freedom of movement, e.g. by imposing
unreasonable restrictions on released political detainees and by
operating "blacklists" which bar certain people from entering or
leaving East Timor; alleged large-scale harassment of families
and close associates of political detainees and those suspected
of being pro-independence sympathsiers.