Judicial System Monitoring Programme (JSMP) Justice Update
Impact of the Maternus Bere Case on the Justice System and the Rule of Law in Timor-Leste
[Tetum version of this report]
Timor-Leste is a democratic and sovereign state based on the rule of law, as set out in Articles 1.1 and 2 of the Timor-Leste Constitution.
In order to be considered as a state that upholds the rule of law there are a number of fundamental elements or essential preconditions that need to be fulfilled. These elements include the protection of human rights, respect for the principle of separation of powers, justice based on the law and recognition of the principles the underpin the rule of law, equality before the law and guarantees for human rights as set out in the Constitution. With this in mind, the right to justice is one of the most fundamental human rights that can not be denied in any circumstance, or for any reason or argument. Therefore, upholding the law and justice is the main objective of any democratic nation that adheres to the rule of law. This is also the case with the Democratic Republic of Timor-Leste, where the right to justice is a collective commitment that can not be ignored or politicized.
When we talk about the law in Timor-Leste, the reality is quite the opposite. In other words, the opposite rules apply, namely that Timor-Leste is a state based on the rule of law that DOES NOT punish, DOES NOT guarantee or uphold truth and justice, DOES NOT uphold the rule of law. Instead it gives in to the interests and persuasion of certain groups, as a result of the inconsistency and partiality of the judicial organ which is a public and sovereign organ of the Democratic Republic of Timor-Leste. The tendency of politicians and high ranking people in this country to intervene has destroyed the principles of a state based on the rule of law, the principle of the separation of powers and principles of justice as set out in the Constitution, is the highest source of law in this country.
Debate about the release of Maternus Bere
It is commonly known that Maternus Bere was one of the leaders of the Laksaur militia group that operated in the jurisdiction of Suai-Covalima in 1999. In February 2003, the UN Serious Crimes Unit, which was established in Timor-Leste in 2001, issued an indictment in Case No.09/2003 naming Maternus Bere as the main perpetrator together with a large group of defendant who were suspected on being involved directly in an attack on civilians/refugees who were seeking protection in the Suai Church. In its indictment the UN Serious Crimes Unit categorized the crimes committed by Maternus Bere as crimes against humanity, in the form of murder, genocide, forced disappearances, torture and inhumane treatment, rape, forced deportation and persecution. Even though Bere was charged in relation to a number of different incidents, the most infamous was the massacre that took place at the Suai Church on 6 September 1999. According to the UN Serious Crimes Unit it is estimated that between 30 and 200 people were killed in this attack, including three priests. Also a large number of victims suffered serious injuries as a result of this attack (Case 09-2.003, paragraph 228-237).
A warrant of arrest against Maternus Bere was also issued by Interpol in 2003. A request for his arrest and extradition was sent to the Indonesian police. However there was no response from the Indonesian government. Bere was then arrested and detained by the police in Suai on 8 August 2009 when he visited Suai.
Pursuant to an order issued by a judge from the Suai District Court, Bere was transferred to Becora Prison and held in pre-trial detention. Based on information that was circulated on 30 August, the Indonesian Minister of Foreign Affairs reportedly called the President of the Republic Jose Ramos Horta asking for Bere to be released from detention.
As a result of the alleged actions of Prime Minister José Alexandre “Xanana” Gusmão, to free Maternus Bere at the request or order from the Timor-Leste President on 30 August 2009 marking the 10 anniversary of the referendum in Timor-Leste, a feisty debate has taken place at all levels, including the National Parliament, Court of Appeal, Churches, civil society, legal observers and human rights advocates, and in particular the families of the victims who were directly affected by the 1999 massacre.
Therefore JSMP feels a great need to examine this case from a legal perspective and its future implications on our justice system and additional impacts on the rule of law as a whole.
1. Concept of Justice
1.1 Justice according to the Authorities
In a theoretical sense justice can be understood as the intellectual consideration and resolution of all kinds of conflicts by third parties who are detached, straightforward, impartial and without prejudice. However experience and reality in Timor-Leste has shown that the authorities tend to only see and deal with the concept of justice from a political perspective. This approach is demonstrated by the establishment of the Commission for Truth and Friendship between Indonesia and Timor Leste, the pardoning and acquittal of those who carried out or were found guilty of the crimes committed in 1999, cases relating to the 2006 crisis and last of all the case involving the former LAKSAUR commander Maternus Bere, who was ordered by a competent court to be placed in temporary detention. Efforts to free Maternus Bere and political statements included in official state addresses in relation to the ongoing process can be seen as attempts to interfere directly and indirectly with the judicial process.
The ideology of reconciliation has been used as an excuse to justify this political approach and the victim’s rights to justice have been neglected and sacrificed. State leaders have prioritized diplomatic relations between Indonesia and Timor-Leste rather than upholding the interests of justice in accordance with the spirit of the Constitution or acting in a way befitting a nation based on the rule of law.
1.2 Justice according to the Families of the Victims
A report recently published by Amnesty International, in anticipation of the 10th anniversary since the referendum on Timor-Leste on 30 Augustu 2009, contained quotes from victims who are still fighting to get justice for the crimes and violence of 1999. The following quote was included: “We are very upset and continue to suffer until now …it has been 10 years ... not a single person has come and told us about the whereabouts of our wives, husbands, children, mothers, fathers, brothers or sisters that were killed …when can we say finally there is justice and truth for us? …maybe you have all forgotten about this, but there needs to be justice.”
Another victim stated that: “I hope that Timor will have a bright future, but one with peace and justice. I don’t think that the perpetrators have been bought to justice, especially the generals who were in control here, who are now nominating themselves in the presidential elections in Indonesia ... what happens if they end up as leaders one day in Indonesia? Maybe they will attack us again in the future.”
The political approach used by the state is against the wishes of the majority of victims and the families of victims. In principle, the victims and the families of victims have not ignored the importance of reconciliation efforts being pursued by the government. However, they believe that the reconciliation efforts being pushed by the government should be based on a judicial process that is fair, transparent and credible. However, it appears that the government is forcing this reconciliatory approach, which has bypassed the legal process and has contributed nothing to the legal system that has been established. Moreover this approach has specifically betrayed the rights of the victims to justice. This approach also shows that the voices of the victims have not been considered as a central element or factor in establishing the reconciliation process that has been put forward by the state. As a consequence this approach has achieved political reconciliation but this reconciliation is not based on the spirit of the law and justice.
2. State Policy and Commitment to Justice
Timor-Leste is facing a range of serious challenges and issues in terms of its institutional obligations and responsibilities to provide and uphold justice. In addition to limited human resources in the judicial sphere there are serious problems such as a lack of commitment and political desire on behalf of the state leaders who are in power. This includes an awareness that leaders should refrain from intervening in an area that is not part of their sovereign jurisdiction. There are several cases that highlight the lack of commitment of the state in providing and upholding the law and justice. For example, cases of human rights violations before and after the referendum in 1999, the 4th December 2002 Case which was lost in the system itself (the legal process was discontinued), the 2006 Crisis as well as the 11 February 2008 attack which is still ongoing. These cases illustrate how many times the State’s commitment has been tested in relation to the capabilities of its legal institutions that have been mandated to uphold law and justice. Everyone has placed their hopes with these institutions. However there are several clear examples that confront us and it’s no surprise that there is doubt and even a lack of faith in the future of our justice system.
3. The Constitution and Guarantees of Justice
The RDTL Constitution highlights a range of principles in terms of access, guarantees and social justice as ideals in accordance with the spirit of the rule of law in a democratic nation.
Such guarantees of law and justice are stated explicitly in several articles of the Timor-Leste Constitution, namely Article 2 of the Constitution on “Sovereignty and constitutionality”, Article 6 on “Objectives of the State”, and Article 16 on “Universality and Equality” which states that “All citizens are equal before the law, shall exercise the same rights and shall be subject to the same duties. Also, Article 26 of the Constitution on “Access to Courts” states that “Access to courts is guaranteed to all for the defence of their legally protected rights and interests”. It is common knowledge that these constitutional guarantees can’t be interpreted in a narrow sense or applied unilaterally. Rather, access to the courts and the provision of justice should be prioritized in the interest of victims when their rights and interests have been violated by defendants.
4. The Release of Maternus Bere and the impact on the Constitution and Other Laws
JSMP has carefully and cautiously examined the release of Maternus Bere, not just because of a difference of opinion or a standard political debate, but because this case threatens the authority and existence of the Constitution as the highest source of law in this nation.
JSMP believes that the release of this individual will not just have a negative impact on upholding the law in the future, and it’s not merely a disregard for the principle of the separation of powers, but more than that, this case has other more serious and direct implications for the existence of the rule of law and democracy and the human rights values that are still in the process of being cultivated.
The following articles from the Constitution have been violated and sullied as a result of intervention into the Maternus Bere case.
a) Article 1 of the Constitution states that “The Democratic Republic of East Timor is a democratic, sovereign, independent and unitary State based on the rule of law, the will of the people and the respect for the dignity of the human person”. The release of the defendant Maternus Bere merely at the urging of a Foreign Affairs Minister is forfeiting the sovereignty of this nation to the Indonesian government.
b) Article 6 of the RDTL Constitution establishes the fundamental objectives of the State, namely a) To defend and guarantee the sovereignty of the country, b) To guarantee and promote fundamental rights and freedoms of the citizens and the respect for the principles of the democratic State based on the rule of law, and e) To promote the building of a society based on social justice, by establishing material and spiritual welfare of the citizens. The release of the defendant Maternus Bere has undermined the objectives of the state which should be defended in all circumstances.
c) Articles 9.1, 9.2, and 9.3 of the RDTL Constitution establish that the legal system of Timor-Leste shall adopt the general or customary principles of international law in the internal legal system of East Timor. Therefore efforts to interfere in a case involving human rights violations and crimes on an international scale within the jurisdiction of the territory of Timor-Leste are a failure of the state’s obligation under international law.
d) Furthermore Article 16 of the RDTL Constitution states that “All citizens are equal before the law, shall exercise the same rights and shall be subject to the same duties”. The philosophy that underlines this article is that all people are entitled to equal treatment before the law without exception on any grounds. This means that all citizens are equal before the law without exception, including Maternus Bere who is strongly suspected of committed serious crimes as charged by the Serious Crimes Unit in 2003. This provision provides an opportunity to all parties to appear before court to defend their rights including the right to justice for victims. The release of Bere is a refusal to acknowledge this clause and also impedes victims from obtaining justice.
e) Article 26 of the RDTL Constitution establishes the right to “Access to Courts”- everyone has the right to access the courts and to defend their rights and interests that are protected in accordance with the law. The court is the only institution that is mandated to provide justice including protecting human rights and restoring those rights that have been violated. In the Bere case the State has restricted the rights of citizens to access justice. In circumstances like this the State is complicit in the commission of crimes against its own citizens because it is preventing its citizens from obtaining justice.
f) Article 69 of the RDTL Constitution on the Principle of Separation of Powers states that “Organs of sovereignty, in their reciprocal relationship and exercise of their functions, shall observe the principle of separation and interdependence of powers established in the Constitution”. This article clearly delineates the boundaries between each institution, meaning that each sovereign organ of the state does not encroach upon the jurisdiction of another organ’s sovereignty. Article 69 of the Constitution does not allow a sovereign organ to intervene in matters outside of its mandate. In relation to the defendant Maternus Bere, the decision to release him constitutes a serious threat to the judicial institution which is a sovereign organ of the State; therefore this act is not merely a misuse of authority but also undermines the authority of another sovereign organ.
g) In addition JSMP believes that the release, ordered to be carried out by the RDTL President, has deviated from Article 74.1 of the Constitution which states that “The President of the Republic is the Head of State and the symbol and guarantor of national independence and unity of the State and of the smooth functioning of democratic institutions”. Therefore the release of Maternus Bere is in disregard of the constitutional requirements entrusted to the President.
h) Furthermore JSMP believes that another equally relevant and important provision is Article 77 of the Constitution on the inauguration and swearing-in of the President of the Republic. Subsection 3 states that “At the swearing-in ceremony, the President of the Republic shall take the following oath: I swear to God, to the people and on my honor that I will fulfill with loyalty the functions that have been invested in me, will abide by and enforce the Constitution and the laws and will dedicate all my energies and knowledge to the defence and consolidation of independence and national unity.” It is believed that Maternus Bere was released or ordered to be released at the request or urging of Indonesia, and therefore the President has clearly violated his official oath that was made before the members of the National Parliament as legitimate representatives of the people. This act also reflects how the President has disregarded and ignored the solemn pledge he made to the people, the state and his own conscience to defend and uphold the Constitution as the cornerstone of the state and the lives of citizens. Moreover his act has neglected his constitutional responsibilities to defend the Constitution. All citizens of Timor-Leste recognize the importance of establishing and fostering good relations between Timor-Leste and Indonesia, but JSMP maintains that the State should not trade off the sovereignty of the State, its nascent legal system and the basic rights of Timorese citizens to justice as provided for in the Constitution, simply to prioritize political interests and reconciliation. Regardless of the urgency of a state priority, decisions must not deviate from legal norms and the Constitution.
i) There are several other matters that are extremely relevant to the Maternus Bere case which require further analysis and consideration. Namely those articles that deal with the competencies of the President and Prime Minister established in the Constitution. Articles 85 and 115 respectively set out the competencies of each of these two sovereign organs. The Constitution provides both of them with wide ranging powers but not the authority to deal with the administration of justice. Their competence is limited to political matters relating to the appointment and swearing in of the President of the Court of Appeal and the Prosecutor General, and also to promulgate statutes, grant pardons and veto any statutes that appear unconstitutional. The Maternus Bere case shows that the President and the Prime Minister have acted outside of their constitutional authority.
j) Moreover Article 118.1 of the Constitution states that the Courts are organs of sovereignty with competencies to administer justice in the name of the people. Subsection 3 of this article states that “Court decisions shall be binding and shall prevail over the decisions of any other authority”. Also Article 119 states that “Courts are independent and subject only to the Constitution and the law”. Both of these articles clearly state that only the court has exclusive competence to deal with the administration of justice and court decisions have the highest authority and are superior to all decisions made by any other authority. Therefore, even if a court decision is considered flawed, only another court at a higher instance has the authority to correct the decision, not the President or the Prime Minister. Therefore by intervening in the Maternus Bere case the President and the Prime Minister have encroached upon and invaded an area outside of their jurisdiction and their actions are unconstitutional because they have acted outside of their constitutionally mandated authority.
k) This intervention into the Bere case has violated a national commitment to pursue criminal proceedings with the national or international courts as set out in Articles 160 and 163 of the Constitution. Therefore the court’s position in the Bere case is legal and constitutional. Regardless of the ability or lack of ability of Timor-Leste in terms of its constitutional capacity and political commitment to establish a court to deal with crimes against humanity that occurred in 1999, JSMP maintains its position on the need to continue the judicial process against the perpetrators of human rights violations in 1999, in accordance with Articles 160 and 163 of the Constitution. This is not a naive desire, but rather in line with respect and adherence to constitutional norms and the applicable law. This rationale also demands consistency and maturity in the conduct of state affairs in recognition that only the law sits above all interests and considerations of the State. JSMP also urges State administrators to acknowledge their obligation to respect and comply with the law and place the law above their own interests. JSMP believes that in the Bere case the President and the Prime Minister have placed themselves above the Constitution. This political behavior has threatened the integrity of the state in the future. JSMP acknowledges the challenges and difficulties of establishing a court with national or international jurisdiction to deal with serious human rights violations, however it is commonly understood that crimes against humanity are cases that fall within universal jurisdiction. Therefore the prosecution and conviction of perpetrators is not just the responsibility of a single nation, but rather it is the responsibility of the international community as a whole. This is the manifestation of a universal commitment to care for fellow human beings to demonstrate that the violation of human rights is an issue for the all nations in the world.
l) If we are all consistent in putting the law above all else then we will concord with the stance of the President of the Court of Appeal that the aforementioned acts violate Article 245 of the Timor-Leste Penal Code which states that “Any person who, by unlawful means, releases .... a person lawfully deprived of liberty, is punishable with 2 to 6 years imprisonment”. Is the Office of the Prosecutor General brave enough to initiate an investigation into this case? Is the Office of the Prosecutor General willing and able to adhere to its constitutional mandate pursuant to Article 132.1 that states that “Public Prosecutors have the responsibility for representing the State, prosecuting, ensuring the defence of the underage, absentees and the disabled, defending the democratic legality, and promoting the enforcement of the law”?
5) The Maternus Bere case and Timor-Leste’s obligations under international law
According to international law crimes against humanity together with genocide, war crimes and torture are commonly categorized as jus cogens, namely a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. The basic concept of jus cogens is that some principles are fundamental to the interests of the international community and any derogation of such constitutes a threat against the order and integrity of the international community itself. Therefore this principle implies that all countries have an obligation to prevent and punish the aforementioned crimes.
Under Articles 9 and 23 of the Constitution Timor-Leste has stated its commitment pursuant to international law to promote universal respect for general or customary principles of international law and human rights and fundamental freedoms. Article 9.2 of the Constitution states that “Rules provided for in international conventions, treaties and agreements shall apply in the internal legal system of East Timor”.
Pursuant to these provisions, it was unconstitutional to intervene in Timor-Leste’s obligations under international law to pursue and prosecute genocide, torture and crimes against humanity. Timor-Leste’s obligations stem from the following conventions:
1. Convention on the Prevention and Punishment of the Crime of Genocide which obliges state parties, including Timor-Leste to ‘prevent and punish’ the crime of genocide.
2. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment which obliges state parties, including Timor-Leste to prosecute perpetrators and punish them in proportion to the seriousness of their crimes.
3. Article 6.3 of the International Covenant on Civil and Political Rights states that “When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide”.
4. The Rome Statute of the International Criminal Court states in its preamble that state parties, including Timor-Leste, affirm that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level.”
Also several resolutions issued by the United Nations Security Council re-iterate the position of the United Nations that there shall be no impunity for genocide and other serious crimes that were committed in Timor-Leste:
1. UN Security Council Resolution 1272 (1999) where the Security Council stated the following:
“Expressing its concern at reports indicating that systematic, widespread and flagrant violations of international humanitarian and human rights law have been committed in East Timor, stressing that persons committing such violations bear individual responsibility, and calling on all parties to cooperate with investigations into these reports”.
2. UN Security Council Resolution 1338 (2001) where the Security Council stated the following:
“Emphasizes the need, in the light of the recommendations in the report of the Security Council Mission, for measures to address shortcomings in the administration of justice in East Timor, particularly with a view to bringing to justice those responsible for serious crimes in 1999, and for urgent action to expedite the training of the Timor Lorosae Police Service and to attract sufficient resources to develop this police service and the judicial system”.
3. UN Security Council Resolution 1410 (2002) where the Security Council stated the following:
“Welcomes the progress made in resolving pending bilateral issues between Indonesia and East Timor, and stresses the critical importance of cooperation between these two Governments, as well as cooperation with UNMISET, in all aspects, including in implementation of the relevant elements of this and other resolutions, in particular by working together to secure agreement on the issue of border demarcation, by ensuring that those responsible for serious crimes committed in 1999 are brought to justice, by helping ensure repatriation or resettlement of refugees currently in Indonesia and by continuing to work together to curb criminal activities, in all their forms, including by militia elements, in the border area”.
Therefore JSMP believes that the decision of the Timor-Leste government to release Maternus Bere demonstrates a disregard for its obligations as a member state of the aforementioned conventions; a disregard for its obligations pursuant to UN Security Council Resolutions; and a disregard for public sensibilities and the demands of victims for justice in relation to the violence and human rights violations that they experienced. As a nation that came into being as the result of a long campaign of international solidarity, realized through the issuance of UN Security Council Resolutions, Timor-Leste should not disregard its obligations in such a flippant manner. Disregard for UN mechanisms reflects how Timor-Leste has betrayed international solidarity and the active participation of the international community that was responsible for helping Timor-Leste to gain its independence.
JSMP believes that state leaders have failed to respect the Constitution as well as the national and international laws applied in Timor-Leste, and therefore they have disregarded their institutional responsibility to provide justice to their citizens. Moreover, the State has contributed towards the preservation of impunity, which has undermined legal values and the faith of the community towards the legal system, therefore undermining the rule of law which in turn erodes public faith in legal institutions and in the end renders the law impotent, giving rise to horizontal conflict and a situation once described by Thomas Hobbes as “Homo homonim lupus”, meaning only the strong will win or in simple terms “taking the law into your own hands”. A situation like this will have a significant impact on public faith in the legitimacy of the State and poses a serious threat to stability.
JSMP believes, in light of the current situation, that we have to consider the hypothesis put forward by legal experts that no civilized and democratic nation can exist without a judicial institution that is strong, independent and free from political intervention. JSMP believes that the most important pillar for upholding the sovereignty of a democratic nation based on the rule of law is a judicial institution that stands strong and firm, free from all forms of intervention from any party.
Considering the many issues of constitutionality discussed above, as well as Timor-Leste’s obligations pursuant to international law, JSMP urges all parties to think rationally, maturely and with careful consideration about the implications of the Bere Case on the rule of law that we supposedly embrace. What are the implications for maintaining the integrity of the rule of law in this democratic nation? How relevant are the principles established in the Constitution on democracy, rule of law, separation of powers and the independence of the courts, if these principles are not defended in a consistent manner? If we agree to defend these principles, then what do we need to do and how can we contribute?