Timor-Leste’s Bill of Rights A Preliminary History Timor-Leste’s Bill of Rights A Preliminary History ANNEMARIE DEVEREUX Foreword by Adérito de Jesus Soares Published by ANU Press The Australian National University Acton ACT 2601, Australia Email: [email protected] This title is also available online at http://press.anu.edu.au National Library of Australia Cataloguing-in-Publication entry Creator: Devereux, Annemarie, author. Title: Timor Leste’s bill of rights : a preliminary history / Annemarie Devereux. ISBN: 9781925022384 (paperback) 9781925022391 (ebook) Subjects: Human rights--Timor-Leste. Civil rights--Timor-Leste. Political participation--Timor-Leste. Nation-building--Timor-Leste. Timor-Leste--Constitutional history. Timor-Leste--Politics and government--2002– . Dewey Number: 959.87 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design and layout by ANU Press Cover photo: Members of the Constituent Assembly applauding during the signing ceremony on 22 March 2002 in which the final text of the Constitution was adopted (AP via AAP/Firdia Lisnawati). Printed by Griffin Press This edition © 2015 ANU Press Contents Foreword . ix Acknowledgments . xi Abbreviations . xiii Part 1 Introduction . 3 Exploring the history of the Constitution . 3 Sources, methodology and caveats . 7 Overview of the Constitution-Making Process in Timor-Leste . 17 Deciding on the shape of the constitutional process . 17 Community views expressed prior to the Assembly . 23 The operation of the Constituent Assembly . 30 Conclusion . 59 Part 2 – Section-by-Section Analysis of the Bill of Rights Explanatory notes for Part 2 . 63 Title I: General Principles (Sections 16–28) . 67 Section 16 (Universality and equality) . 67 Section 17 (Equality between women and men) . 76 Section 18 (Child protection) . 79 Section 19 (Youth) . 89 Section 20 (Senior citizens) . 93 Section 21 (Disabled citizens) . 97 Section 22 (East Timorese citizens overseas) . 100 Section 23 (Interpretation of fundamental rights) . 104 Section 24 (Restrictive laws) . 108 Section 25 (State of exception) . 112 Section 26 (Access to courts) . 118 Section 27 (Ombudsman) . 120 Section 28 (Right to resistance and self-defence) . 131 Title II: Personal Rights, Freedoms and Guarantees (Sections 29–49) . 135 Section 29 (Right to life) . 135 Section 30 (Right to personal freedom, security and integrity) . 139 Section 31 (Application of criminal law) . 146 Section 32 (Limits on sentences and security measures) . 150 Section 33 (Habeas corpus) . 154 Section 34 (Guarantees in criminal proceedings) . 157 Section 35 (Extradition and expulsion) . 161 Section 36 (Right to honour and privacy) . 166 Section 37 (Inviolability of home and correspondence) . 169 Section 38 (Protection of personal data) . 174 Section 39 (Family, marriage and maternity) . 179 Section 40 (Freedom of speech and information) . 185 Section 41 (Freedom of the press and mass media) . 192 Section 42 (Freedom to assemble and demonstrate) . 199 Section 43 (Freedom of association) . 203 Section 44 (Freedom of movement) . 208 Section 45 (Freedom of conscience, religion and worship) . 211 Section 46 (Right to political participation) . 216 Section 47 (Right to vote) . 221 Section 48 (Right to petition) . 224 Section 49 (Defence of sovereignty) . 228 Title III: Economic, Social and Cultural Rights and Duties (Sections 50–61) . 231 Section 50 (Right to work) . 231 Section 51 (Right to strike and prohibition of lock-out) . 237 Section 52 (Trade union freedom) . 240 Section 53 (Consumer rights) . 243 Section 54 (Right to private property) . 246 Section 55 (Obligations of the taxpayer) . 255 Section 56 (Social security and assistance) . 258 Section 57 (Health) . 262 Section 58 (Housing) . 270 Section 59 (Education and culture) . 273 Section 60 (Intellectual property) . 281 Section 61 (Environment) . 284 Additional sections suggested in submissions . 289 Annexes . 291 Annex I . Bill of Rights in the Constitution of the Democratic Republic of Timor-Leste (Portuguese) . 291 Annex II . Members of Thematic Committee I and the Systematisation and Harmonisation Committee . 304 Annex III . Members of the Constituent Assembly . 306 Annex IV . List of reviewed submissions to the Constituent Assembly . 310 Select references . 315 Foreword Reading this book brings me back to one of the most exciting periods in Timor’s history – the six months of our constitutional debate. The original timeframe granted by the United Nations was actually shorter. I recall joking in the early sitting days of the Constituent Assembly: ‘Better we draft a 60-article Constitution, given that we only have 60 effective working days.’ Eventually, the timeframe was extended, after some lobbying and public pressure. Following my involvement in the resistance effort that preceded independence, I was again privileged to be a part of the making of my country’s history, in drafting the first Constitution of the Democratic Republic of Timor-Leste. The six-month process of constitutional drafting was a great democratic exercise for many Timorese, despite the differences between the political parties, time constraints and other shortcomings. The author of this book, Dr Annemarie Devereux, who was a direct observer and adviser to the Constituent Assembly during the whole process, captures very well the rich debate in the Constituent Assembly. This book is a testimony to that debate and will serve to enhance the understanding of the debates for future scholars, lawyers and the people of Timor-Leste. In the debates over human rights protections, members of the Constituent Assembly fell into one of two broad groups. The first group (consisting of a majority of members) were quite straightforward in considering the importance of adopting a Bill of Rights within the Constitution. This group was very genuine in the sense that they were motivated by the desire to prevent a repetition of the human rights atrocities faced by Timorese, especially under the illegal Indonesian occupation. They were determined that a human rights vocabulary should be an integral part of the new Constitution. The second group (a minority of members) were concerned with the means of realising those rights, repeatedly asking the question,‘Can the State fulfill all these basic rights for the people?’ Concerns voiced during these debates regarding human rights continue to be echoed today: ‘Povu seidauk hetan be’e mós’ (The people have no clean water); ‘Povu la iha aseso ba saude’ (The people have no healthcare); and ‘Labarik dalan-ibun la hetan protesaun husi estadu’ (Street children are not protected by the state). Notwithstanding these challenges, today we all say that we have to uphold the Constitution, which includes upholding human rights. In spite of minor differences between the members of the Assembly on the unresolved issue of justiciability (that is, whether claims for human rights could be enforced through the courts), most were supportive of the Bill of Rights included in the Constitution. Today we are watching the practice of democracy in Timor-Leste, based on its Constitution. There are gaps here and there, but it is interesting to observe ix Timor-Leste’s Bill of Rights in the years since the Constituent Assembly, how the fulfillment of rights is being reconciled with the various competing priorities facing Timor-Leste. The determination of the members of the Constituent Assembly in adopting the Bill of Rights has meaning only if the State takes the measures necessary to realise those rights. Can the Timorese realise their Bill of Rights and prove wrong the Orwellian statement that ‘some are more equal than others’? Only time will tell. Adérito de Jesus Soares Former Chair of the Systematisation and Harmonisation Committee of the Constituent Assembly, and former Anti-Corruption Commissioner of Timor-Leste x Acknowledgments There is a range of people that I would like to thank for their support in finalising this volume. I would like to express my thanks to the Human Rights Unit of UNTAET (at that time headed by Patrick Burgess) for the opportunity to work on the constitutional process as part of my engagement with the United Nations. I was fortunate to work with many wonderful colleagues in that unit, as well as many human rights proponents in civil society and within the Constituent Assembly. Adérito de Jesus Soares has been a wonderful supporter and facilitator of this project and I owe him a particular debt of gratitude. I was fortunate to first work with Adérito in his NGO days, before he was elected to the Constituent Assembly. Within the Assembly, Adérito became Chair of the Systematisation and Harmonisation Committee. In addition to his kind foreword for this study, Adérito generously gave several days of his time to working through with me several untranslated days of the Assembly’s sittings (21–22 December 2001), and facilitated my initial access to the Parliamentary Secretariat and Archives. In addition, he has always been willing to provide his expert opinion and encouragement. My sincere thanks are expressed to Adelino Guterres, the Director-General of the Parliamentary Secretariat (during my visit in 2007) and João Rui Amaral, Director General of the Parliamentary Secretariat (during my visit in 2012), for arranging my access to the Assembly records held by the Parliament, after approval was received