24 June 2011

Statement condemning Indonesian Minister of Health Regulation No 1636 of 2010 on Female Circumcision

Note: This public statement condemning a new Indonesian Ministerial Regulation on Female Circumcision is published here on ETLJB in solidarity with the women of Indonesia who are subjected to this type of violation of their human rights. ETLJB also completely condemns this primitive practice which is a manifestation of moral disorder.
AMNESTY INTERNATIONAL
Pernyataan Publik

ASA 21/015/2011
23 Juni 2011

Indonesia: Peraturan Menteri tentang sunat perempuan harus dicabut

Pernyataan Sikap Bersama Masyarakat Sipil Indonesia dan Amnesty Internasional

Pihak berwenang Indonesia harus selekasnya mencabut peraturan menteri tentang sunat perempuan yang baru saja dikeluarkan, dan sebaiknya menerapkan peraturan yang khusus dengan hukuman yang pantas untuk melarang segala jenis mutilasi kelamin perempuan (female genital mutilation/FGM).

Peraturan baru itu melegitimasi praktik mutilasi kelamin perempuan dan memberi otoritas pada pekerja medis tertentu, seperti dokter, bidan dan perawat, untuk melakukannya. Peraturan baru itu mendefinisikan praktek ini sebagai “Tindakan menggores kulit yang menutupi kulit bagian depan klitoris, tanpa melukai klitoris”. Prosedur ini mencakup “lakukan goresan pada kulit yang menutupi bagian depan klitoris (frenulum clitoris) dengan menggunakan ujung jarum steril sekali pakai” (Pasal 4 ayat 2 (huruf g)) Berdasarkan peraturan baru ini, tindakan sunat perempuan hanya bisa dilaksanakan dengan permintaan dan persetujuan orang yang disunat, orangtua dan/ atau walinya.

Peraturan baru oleh Menteri Kesehatan (No. 1636/MENKES/PER/XI/2010) mengenai sunat perempuan, dikeluarkan pada November 2010, berlawanan dengan langkah pemerintah memperkuat kesetaraan gender dan melawan segala bentuk diskriminasi terhadap perempuan. Peraturan itu juga melanggar sejumlah hukum Indonesia, termasuk Undang-Undang No.7/1984 tentang Ratifikasi Konvensi Internasional tentang Penghapusan Segala Bentuk Diskriminasi terhadap Perempuan (CEDAW); Undang-Undang No. 5/1998 tentang ratifikasi Konvensi PBB Menentang Penyiksaan dan Perlakuan atau Penghukuman yang Kejam, Tidak Manusiawi atau Merendahkan (CAT); Undang-Undang No. 39/1999 tentang Hak Asasi Manusia; Undang-Undang No. 23/2002 tentang Perlindungan Anak; Undang-Undang No. 23/2004 tentang Kekerasaan dalam Rumah Tangga; dan Undang-Undang No. 23/2009 tentang Kesehatan. Ini berlawanan juga dengan sebuah edaran pemerintah tahun 2006, No. HK.00.07.1.3. 1047a, ditandatangani Dirjen Bina Kesehatan Masyarakat, yang secara khusus memperingatkan dampak negatif kesehatan MKP pada perempuan.
.
Mutilasi kelamin perempuan termasuk sebuah bentuk kekerasan terhadap perempuan yang harus dihapus. Ketika negara gagal secara efektif menentang praktik ini maka akan mendorong persepsi bahwa orang lain yang berhak mengontrol seksualitas seorang perempuan atau anak perempuan, yaitu, memutuskan atas namanya dalam kondisi apa ia harus (atau tidak boleh) terlibat dalam aktivitas seksual. Amnesty International khawatir peraturan ini membenarkan dan mendorong mutilasi kelamin perempuan, praktik yang mengakibatkan kesakitan dan penderitaan bagi perempuan dan anak perempuan, sehingga melanggar larangan mutlak atas penyiksaan dan perlakuan buruk. Mutilasi kelamin perempuan juga mendorong pelabelan (stereotyping) yang diskriminatif atas seksualitas perempuan.

Sebagaimana terdokumentasikan dalam laporan tahun 2010 berjudul Tak ada pilihan: Hambatan atas kesehatan reproduktif di Indonesia, Amnesty International mendapat informasi dari banyak perempuan dan anak perempuan bila mereka memilih untuk melakukan mutilasi kelamin perempuan untuk bayi perempuan mereka dalam beberapa tahun terakhir ini. Praktik ini umumnya dilaksanakan oleh dukun bayi tradisional dalam enam minggu pertama setelah kelahiran bayi perempuan mereka. Para perempuan tersebut mengatakan mereka meminta bayi perempuan mereka untuk menjalankan mutilasi kelamin perempuan untuk alasan keagamaan. Alasan lain dari para perempuan tersebut adalah ingin menjamin “kebersihan” anak bayi perempuan (bagian luar kelamin perempuan dianggap kotor) dan menghindari penyakit; melanggengkan praktik budaya atau lokal; berusaha mengatur atau menekan hasrat perempuan atas “aktivitas seksual” pada masa dewasanya kelak. Beberapa perempuan mendeskripsikan prosedurnya sebagai semata “goresan simbolik”, sementara dalam kasus-kasus lainnya mereka menjelaskan bahwa tindakan tersebut termasuk memotong sebagian kecil klitoris. Banyak perempuan yang diwawancara tersebut setuju bahwa akan ada pendarahan setelahnya.  

Terlepas dari cakupan prosedurnya, praktek mutilasi kelamin perempuan menunjukkan pelabelan / stereotyping yang diskriminatif mengenai kelamin perempuan yang “kotor” atau merendahkan; bahwa perempuan tidak berhak membuat pilihan mereka sendiri mengenai seksualitas dengan cara yang sama dengan laki-laki; dan perempuan dan anak perempuan hanya bisa bermartabat secara penuh dalam praktek keagamaan jika badan mereka diubah, artinya ada yang secara inheren salah dengan tubuh perempuan. Perilaku-perilaku yang merendahkan perempuan karena kondisi aktual atau persepsi atas seksualitas mereka sering dijadikan justifikasi kekerasan terhadap perempuan.

Dalam kesimpulan observasinya tahun 2007, Komite CEDAW merekomendasikan Indonesia untuk mengembangkan rencana aksi untuk menghapus praktik mutilasi kelamin perempuan, termasuk mengimplementasikan kampanye penyadaran public untuk merubah persepsi budaya yang terkait dengannya, serta menyediakan pendidikan yang memasukkan praktik tersebut sebagai pelanggaran hak asasi perempuan dan anak perempuan dan tidak memiliki dasar dalam agama.

Dalam kesimpulan observasinya tahun 2008, Komite PBB untuk Menentang Penyiksaan memberi rekomendasi kepada Indonesia untuk mengambil semua langkah yang memadai untuk menghapuskan praktik mutilasi/ pemotongan kelamin perempuan yang berkelanjutan, termasuk melalui kampanye-kampanye peningkatan kesadaran dengan bekerjasama dengan organisasi-organisasi masyarakat sipil.

Sebagai pihak negara CEDAW dan CAT, pemerintah Indonesia harus segera mengambil langkah-langkah berikut sebagai prioritas:


1.        Mencabut Peraturan Menteri Kesehatan Nomor 1636/MENKES/PER/XI/2010 tentang sunat perempuan;


2.        Memberlakukan kebijakan tertentu melarang berbagai macam praktek sunat perempuan, dengan hukuman yang sesuai;

3.        Melaksanakan publik kampanye peningkatan kesadaran untuk mengubah persepsi budaya yang terkait dengan sunat perempuan.


Pernyataan ini di dukung oleh:

Organisasi Indonesia:

1.        Aceh Peace Consultative Management/APCM
2.        Aliansi Pelangi Antar Bangsa
3.        Aliansi Sumut Bersatu (ASB)
4.        Alimat
5.        ANSIDEM
6.        ANSIPOL

7.        Ardhanary Institute
8.        Asian Moslem Action Network (AMAN) Indonesia
9.        Asosiasi Tenaga Kerja Indonesia (ATKI)
10.        Barisan Perempuan Indonesia
11.        BITES
12.        CEDAW Working Group Initiative
13.        Center for Human Rights Law Studies (HRLS), Faculty of Law, Airlangga University
14.        CIMW
15.        Demos
16.        Fahmina Institute
17.        Federasi LBH APIK Indonesia
18.        Forum Pemerhati Masalah Perempuan (FPMP) Sulawesi Selatan
19.        GemaPalu, Lumajang
20.        GONG PEACE MAGAZINE
21.        GPSP
22.        Herlounge (Viena Tanjung)
23.        Human Rights Working Group (HRWG)
24.        Indonesia AIDS Coalition
25.        Indonesia Support Facility (InSuFa)
26.        Indonesian Conference on Religion and Peace (ICRP)
27.        Institut Hak Asasi Perempuan (IHAP), Yogyakarta
28.        Institut Perempuan, Bandung
29.        IRSAD (Institute for Religion and Sustainable Development), West Sumatra
30.        JALA PRT
31.        Jaringan Kerja Prolegnas Pro Perempuan (JKP3)
32.        JASS Indonesia
33.        Kalyanamitra
34.        Kartini Asia Network
35.        Kaukus Perempuan DPD RI
36.        KePPaK PEREMPUAN Komisariat Bali
37.        KePPaK PEREMPUAN Komisariat Bangka-Belitung
38.        KePPaK PEREMPUAN Komisariat Banten
39.        KePPaK PEREMPUAN Komisariat DKI Jakarta
40.        KePPaK PEREMPUAN Komisariat Jawa Barat
41.        KePPaK PEREMPUAN Komisariat Jawa Tengah
42.        KePPaK PEREMPUAN Komisariat Jawa Timur
43.        KePPaK PEREMPUAN Komisariat Kalimantan Barat
44.        KePPaK PEREMPUAN Komisariat Kalimantan Selatan
45.        KePPaK PEREMPUAN Komisariat Kalimantan Tengah
46.        KePPaK PEREMPUAN Komisariat Kalimantan Timur
47.        KePPaK PEREMPUAN Komisariat Kepulauan Riau
48.        KePPaK PEREMPUAN Komisariat Nusa Tenggara Barat
49.        KePPaK PEREMPUAN Komisariat Nusa Tenggara Timur
50.        KePPaK PEREMPUAN Komisariat Sulawesi Barat
51.        KePPaK PEREMPUAN Komisariat Sulawesi Selatan
52.        KePPaK PEREMPUAN Komisariat Sulawesi Tenggara
53.        KePPaK PEREMPUAN Komisariat Sulawesi Utara
54.        KePPaK PEREMPUAN Komisariat Sumatera Selatan
55.        KePPaK PEREMPUAN Pusat
56.        Koalisi Aktivis Perempuan Sulawesi Selatan (Sulsel)
57.        Koalisi NGO HAM Aceh (Evi Zain)
58.        Koalisi Perempuan Indonesia
59.        Konsorsium untuk Kepemimpinan Politik Perempuan Jawa Barat (KPPP Jabar)
60.        KPKB
61.        LBH APIK Banten
62.        LBH APIK DI Yogyakarta
63.        LBH APIK DKI Jakarta
64.        LBH APIK Jawa Tengah
65.        LBH APIK Kalimantan Barat
66.        LBH APIK Kalimantan Timur
67.        LBH APIK Makasar (Sulawesi Selatan)
68.        LBH APIK Nanggroe Aceh Darussalam
69.        LBH APIK Nusa Tenggara Barat
70.        LBH APIK Nusa Tenggara Timur
71.        LBH APIK Papua
72.        LBH APIK Sulawesi Tengah
73.        LBH APIK Sulawesi Utara
74.        LBH APIK Sumatera Barat
75.        LBH APIK Sumatera Selatan
76.        LBH APIK Sumatera Utara
77.        LBH Makassar
78.         Lembaga Advokasi Perempuan DAMAR Lampung (Helda Khasmy)
79.        Lembaga Partisipasi Perempuan (LP2)
80.        Matepe Makassar
81.        Mitra Perempuan
82.        Ourvoice
83.        PD POL
84.        PELKESI
85.        Pelpem GKPS
86.        Perempuan Mahardhika
87.        Pergerakan Indonesia
88.        Perkumpulan Cut Nyak Dien, Yogyakarta
89.        Perkumpulan IDEA Yogyakarta
90.        Perkumpulan Keluarga Berencana Indonesia (PKBI)
91.        Perkumpulan Rumah Perempuan, Jember
92.        PLU Satu Hati
93.        PMK HKBP Jakarta
94.        PT SUSDEC member of LPTP, Solo
95.        Puan Amal Hayati
96.        Pusat Pendidikan & Advokasi Masyarakat Marginal (Perkumpulan PEDULI in Medan)
97.        Rahima
98.        Raising Her Voice, OXFAM GB - Indonesia
99.        Rumpun Gema Perempuan
100.        Sahabat Perempuan dan Anak Indonesia (SAPA Indonesia)
101.        SA-KPPD, Surabaya
102.        SAPA Institute
103.        SAPDA Jogja (Sentra Advokasi Perempuan Difabel dan Anak)
104.        Sekretariat Nasional Solidaritas Perempuan
105.        Serikat Perempuan Bantul
106.        Solidaritas Perempuan Anging Mammiri- Sulawesi Selatan
107.        Solidaritas Perempuan Bungong Jeumpa – Aceh
108.        Solidaritas Perempuan Kinasih Yogyakarta
109.        
Solidaritas Perempuan,Kendari
110.        The Institute for Defense, Security and Peace Studies (IDSPS) - Mufti Makaarim al-Ahlaq
111.        Walhi Kalbar (Hendrikus Adam)
112.        YAKKUM
113.        YASANTI, Yogyakarta
114.        Yayasan Anugerah Bina Insani (YABI)
115.        Yayasan Jurnal Perempuan
116.        Yayasan Walang Perempuan- Ambon
117.        YLK Sulawesi Selatan (Sulsel)

Organisasi Internasional/ Regional:

118.        AMAN foundation Kalkata, India
119.        AMAN, Srilanka
120.        Amnesty International
121.        ASEAN Progressive Muslim Movement (APMM)
122.        Asia Pacific Forum on Women, Law, and Development (APWLD)
123.        Asian Muslim Action Network (AMAN), Thailand
124.        Asian Women's Resource Centre (AWRC) for Culture and Theology
125.        GSIR Ritsumeikan University
126.        INFORM Documentation Centre, Sri Lanka
127.        IWRAW Asia Pacific
128.        JASS SEA
129.        Muntada-Arab Forum for Sexuality Education & Health, Palestine
130.        Nasawiya, The Feminist Collective, Lebanon
131.        Ngozi Nwosu-Juba
132.        Sisters In Islam, Malaysia
133.        Southeast Asia Women’s Caucus on ASEAN
134.        Vision Spring Initiatives
135.        Women for Women’s Human Rights, Istanbul, Turkey
136.        Women Living Under Muslim Laws, International Coordination Office, UK
Individu:

137.        Agus Sutomo, Lembaga Gemawan, Indonesia
138.        Anna Blaszczyk, Poland
139.        Anna Strempel, Banda Aceh, Indonesia
140.        Christine Anderson
141.        Daniel, Indonesia
142.        Deryn Mansell, guru bahasa Indonesia di Australia
143.        Dewi Anggraeni, Melbourne, Australia
144.        Dr. Free hearty, WOHAI
145.        Dr. Tiara M Nisa, Indonesia
146.        Evelyne Accad (Professeur Emerite, University of Illinois, Lebanese American University)

147.        Exsaudi Romadia M. Simanjuntak, Indonesia
148.        Firliana Purwanti, Indonesia
149.        Fitri Bintang Timur, Indonesia
150.        Ian Usman Lewis, Australia
151.        Jack McNaught, Director of International Internships Pty Ltd

152.        Joko Sulistyo, Indonesia
153.        Joy Appleby
154.        Julia Suryakusuma, Indonesia
155.        Katharine McGregor, the University of Melbourne
156.        K.D.Thomas, Volunteer Graduate, Lembaga Penjelidian Ekonomi dan Masyarakat Fakultas Eknomi (1955-1960)
157.        Maesy Angelina, Indonesia
158.        Merry Iyi
159.        Mitra-femivegi
160.        Ms Elena Williams, Australian National University
161.        Mukhotib MD, PAUD Pandan Wangi, Magelang
162.        Mustafa Sabaroedin, Minang Saiyo Melbourne
163.        Nina Nurmila, a member of Alimat and a lecturer of Universitas Islam Negeri Bandung
164.        Nino Viartasiwi, GSIR Ritsumeikan University, Kyoto-JAPAN

165.        Nunung Fatma, Indonesia
166.        Nurul Sutarti, Yayasan Krida Paramita, Surakarta, Indonesia
167.        Orlando Baylon Gravador, Task Force Detainees of the Philippines
168.        Padmawati Ari Suryani, Asian Women's Resource Centre (AWRC) for Culture and Theology
169.        Prof. Dr Saskia E. Wieringa, University of Amsterdam

170.        Putri Kanesia, KontraS
171.        R. Valentina Sagala, Indonesia
172.        Ratu Dian Hatifah, Indonesia

173.        Rita, Indonesia
174.        Sally Hill, Law Student, Australia
175.        Syafira Hardani
176.        Theresia, Indonesia
177.        Tunggal Pawestri, BITES, Indonesia
178.        Witryna Anna Gostkawskiej

22 June 2011

Criminal trials in Oecusse District Court May 2011

Case Summary Period: May 2011 Edition: 31 May 2011 JSMP - Summary of trials conducted by the Oecusse District Court in May 2011

Between 24-26 May 20011 JSMP conducted court monitoring at the Oecusse District Court. This case summary describes the activities that took place in the aforementioned jurisdiction during a three day period, and does not cover all of the trials that were conducted during the entire month of May, because JSMP has limited resources.

Based on court monitoring conducted at the Oecusse District Court, JSMP noted that hearings were slightly delayed or were not in accordance with the court schedule; however all of the cases scheduled for trial were heard by the court.

JSMP noted that in just three days the Oecusse District Court was able to use the available time to hear 12 cases, which means that four cases were heard each day. JSMP praises the district court for demonstrating its productivity to ensure that court administration is functioning effectively and therefore responding to public expectations on justice.

However, JSMP also noted that on Friday the court did not hold any hearings because several court actors who reside in Dili had to return to Dili.

The trial of the aforementioned cases were presided over by single judge Alvaro Freitas, SH, the prosecution was represented in turn by Jacinto Babo, SH and Afonso Lopes SH, and the Public Defender’s Unit was represented by Calisto Tout, SH and in one case legal representation was provided by a lawyer from F-FSO.

Based on court monitoring, JSMP noticed that not all of the parties attended the court in accordance with the schedule, as some defendants, victims and witness did not appear. Therefore, the court had to adjourn the trials of several cases. In addition, JSMP also noted that in nearly all of the cases of domestic violence that were observed by JSMP over the three day period, the majority of defendants, victims and also witnesses exercised their right to remain silent during the trial, pursuant to Article 125 of the Criminal Procedure Code.

JSMP observed that the judge fulfilled his obligation to mention the provisions of Article 125 of the Criminal Procedure Code before starting each trial to allow the parties to exercise choice, however the judge or court did not provide a detailed explanation on the implications and effects of these provisions when the parties decided to exercise their right to remain silent. JSMP fully understands that the Criminal Procedure Code does not oblige the honorable judge to do so, however in reality JSMP believes that there is a need for the court to explain the implications of Article 125 of Criminal Procedure Code to victims and witnesses who are summoned by the court, especially victims in cases categorized as gender based violence.

During the three days of observation the Oecusse District Court conducted hearings in 12 cases of maltreatment. 9 of these cases related to domestic violence, and interestingly enough, 4 of these were cases involving women as the perpetrators of domestic violence. This shows the public that it is not always men who commit domestic violence, but women also have the capacity to do so. This also means that Law No. 7/2010 Against Domestic Violence which came into force in July 2010 is not only intended to punish men, but this law will also be applied against any person who commits domestic violence against a member of their family, including female perpetrators.

Just like the case summaries that have been provided for other courts, this summary is intended to disseminate up-to-date information to the public about trials and developments in cases that are being heard by the Oecusse District Court.

The following information provides detailed summaries about the hearings that took place during three days of JSMP monitoring at the Oecusse District Court:

1.      Crime of Domestic Violence, Case No. 22/PCO/2011/TDO


The hearing was conducted on 24 May 2011, and presided over by single judge Alvaro M. Freitas, SH, the Prosecution Service was represented by Jacinto Babo Soares, SH and the defendant was represented by Calisto Tout, SH from the Public Defender’s Office.

The defendant MFK was charged with committing a crime against the victim BSS, her husband. The incident allegedly occurred on 14 December 2010 at Sanane Village, Pante Makassar Sub-District, Oecusse District.

At that time the defendant returned home carrying US$ 5,000. This money belonged to the F-EEO NGO where the defendant worked. When he saw the large amount of money the victim was suspicious that the defendant was having an illegitimate relationship (affair) with her boss because every day she would ride pillion on his motorbike. For this reason the defendant and victim had an argument and the victim started to abuse the defendant with words that were offensive to her dignity. The defendant felt embarrassed and took a piece of wood and struck the victim on his right hand and took a rock and then threw it at the victim’s head. The victim suffered swelling to his hand and bleeding from his head.

The public prosecutor charged the defendant in this case with Articles 2, 35 and 36 of the Law Against Domestic Violence as well as Article 145 of the Penal Code relating to ordinary maltreatment. The judge will issue a decision after considering the evidence of this case.

2.      Crime of Domestic Violence, Case No. 05/PCO/2011/TDO

The hearing was conducted on 24 May 2011, and presided over by single judge Alvaro M. Freitas, SH, the prosecution service was represented by Jacinto Babo Soares, SH and the defendant was represented by Calisto Tout, SH.

The defendant PS was charged with committing domestic violence against the victim EP, his wife. The alleged incident occurred on 12 November 2010 in village Wastako Sub-Village, Oebobo Village, Sub-District Taeboko, Oecusse District.

At that time the victim was working in her plantation when the defendant asked her for USD 0.50 (fifty cents) to pay for having his legs massaged. The victim said that she didn’t have any money so the defendant pulled the victim’s hair and threw her to the ground and she landed on some rocks. The defendant also scratched the victim’s face. The victim suffered injuries to her head and cheek.

For one week the victim stayed at her parent’s house then the defendant brought USD 50.00 so he could meet with the victim. The money was handed over to the victim’s family to rehabilitate the good name of the victim’s family.

During the hearing the victim and defendant used their right to not give testimony in accordance with Article 125 of the Criminal Procedure Code. The public prosecutor charged the defendant pursuant to Articles 2, 35 no 36 of the Law Against Domestic Violence as well as Article 145 of the Penal Code. Although the defendant and victim exercised their right to remain silent the public prosecutor maintained the charges pursuant to Article 266 (2b) of the Criminal Procedure Code relating to the enquiry records to the extent that they contain testimony provided by the defendant, victim and witness before judicial authorities. Therefore the public prosecutor requested for the court to punish the defendant with a sentence proportionate to his actions.

The decision will be read out on 7 July 2011 at 2pm.

3.      Crime of Domestic Violence, Case No. 04/PCO/2011/TDO

The hearing was conducted on 24 May 2011 and was presided over by single judge Alvaro M. Freitas SH, the prosecution service was represented by Jacinto Babo Soares, SH and the defendant was represented by Calisto Tout, SH from the Public Defender’s Office.

The defendant MS was accused of committing domestic violence against the victim AK, her husband. The alleged incident occurred on 20 August 2010 in Sanane Oetulu Sub-Village, Costa Village, Pante Makassar Sub-District, Oecusse District.

The victim testified that he and his children went to the plantation, and when they saw that their cassava had been taken by an unknown person, the victim accused the defendant and her children of being responsible. In spite of the accusation, the defendant and her children maintained that they did not do it. However, the victim continued to accuse the defendant, so the defendant felt pressured and unhappy with the accusation, and then the defendant took a rock and threw it at the victim, and as a result the victim suffered swelling to his hand. After the incident the defendant left her home and stayed with her parents for one night. One day later the defendant returned carrying a traditional cloth (tais) to give to her husband and a pig to be slaughtered and eaten together as an expression of remorse and a symbol of peace.

During the hearing the defendant used his right to remain silent and no witnesses were present so the trial was adjourned until 26 May 2011 at 9am to hear witness testimony in accordance with Article 261 (1) of the Criminal Procedure Code.

4.      Crime of Domestic Violence, Case No. 01/Acara Cepat/PCO/2011/TDO


The hearing was conducted on 25 May 2011 and presided over by judge Alvaro M. Freitas SH, the prosecution service was represented by Afonso Lopes, SH and the defendant was represented by Calisto Tout, SH.

The defendant FM stated that the victim has passed away. The hearing could not take place and the trial was adjourned until 21 June 2011 at 9am because the court needs to obtain clear testimony from the defendant.

5.      Crime of Domestic Violence, Case No. 25/PCO/2011/TDO


The trial was conducted on 25 May 2011 and presided over by single judge Alvaro M. Freitas, SH, the public prosecution was represented by Afonso Lopes, SH and the defendant was represented by Calisto Tout, SH.

The defendant AL was charged with committing domestic violence against the victim MT, his wife. The alleged incident occurred on 15 September 2010 in Oetulu sub-village, Costa Village, Oecusse District. At that time the victim asked one of his children FL who had wet hands to move the electrical cable, but FL ignored his command/request. Then the defendant heard about it and got angry with the victim and pushed her causing her to fall over and injure herself. After the victim fell down the defendant stomped on her chest.

During the hearing the defendant, victim and witness DS, who is the nephew of the defendant, chose to exercise their right to remain silent. However, the public prosecutor, pursuant to Article 261 of the Criminal Procedure Code, asked the court to summon two other witnesses to reveal the facts behind the crime, because the defendant, victim and witness who were present had chosen not to provide testimony during the hearing.

The trial was adjourned until 15 June 2011 at 9pm to hear witness testimony.

6.      Crime of Ordinary Maltreatment, Case No. 12/PCO/2011/TDO

The trial was conducted on 25 May 2011, and presided over by single judge Alvaro M. Freitas, SH the prosecution service was represented by Afonso Lopes, SH and the defendant was represented by Calisto Tout, SH from the Public Defender’s Office.

There were two defendants in this case, namely SS and DL. The defendant SS received the summons from the court but did not respond and no clear reason was provided. The defendant DL did not receive the summons because he resides in Dili. Pursuant to Article 256 of the Criminal Procedure Code, the defendant SS who was summoned properly by the court should have provided a reason to the court for not responding to the summons.

The court was unable to conduct the hearing in this case and adjourned the trial until 21 June 2011 at 2pm.

7.      Crime of Domestic Violence, Case No. 11/PCO/2011/TDO

The hearing was conducted on 25 May 2011, and presided over by single judge Alvaro M. Freitas, SH, the prosecution service was represented by Afonso Lopes, SH and the defendant was represented by Calisto Tout, SH from the Public Defender’s Office.

The defendant FB was charged with committing domestic violence against the victim FA, his wife. The alleged incident occurred on 7 October 2010 in Noenine sub-village, Cunha Village, Pante Makassar Sub-District, Oecusse District.

On the aforementioned date at approximately 11pm the defendant struck the victim on her back because he suspected the victim of having a relationship with another man. The witnesses FST and FMT were summoned and testified that they found out about the incident one week later from another person. During the hearing the defendant and the victim exercised their right to remain silent in accordance with Article 125 of the Criminal Procedure Code.

However, the public prosecutor maintained the charges in accordance with Article 145 of the Penal Code as well as Articles 2, 35 and 36 of the Law Against Domestic Violence.

The decision will be read out on 7 July 2011 at 9am.

8.      Crime of Falsification of Documents and Misuse of Authority, Case No. 31/PCO/2010/TDO

The hearing was conducted on 26 May 2011 to hear the indictment. The hearing was presided over by single judge Alvaro M. Freitas, SH, the prosecution service was represented by Afonso Lopes, SH and the defendants were represented by Calisto Tout, SH from the Public Defender’s Office and Raimondo Efi from the Legal Aid Institute F-FSO.

This case involves four defendants, namely AE (Youth Leader), MP (MSS Official), HC (also a civil servant) and BT (Village Chief), who were accused of falsifying birth certificates and trying to falsify voter cards. The alleged incident occurred in 2006. The defendants have been sacked by the government from their positions as civil servants.

For their involvement in the aforementioned crimes the public prosecutor charged the four defendants with Article 263 of the Indonesian Penal Code on the falsification of documents, which carries a sentence of 6 years imprisonment, and Article 303 of the Timor-Leste Penal Code on the falsification of documents, which carries a sentence of 3 years imprisonment or a fine.

Pursuant to the aforementioned articles, the court found the defendants guilty for committing the crimes as charged. The defendant AE was sentenced to 2 years imprisonment, which was suspended for 3 years, the defendants MP and HC were each sentenced to 3 years imprisonment suspended for five years, and the court did not find enough evidence to convict the defendant BT who was acquitted from all charges.

9.      Crime of Domestic Violence, Case No. 04/PCO/2011/TDO

The hearing was conducted on 26 May to hear testimony from witnesses. The hearing was presided over by single judge Alvaro M. Freitas, SH, the prosecution service was represented by Afonso Lopes, SH and the defendants were represented by Calisto Tout, SH from the Public Defender’s Office.

The defendant MS, was charged with committing Domestic Violence against the victim AK, her husband. The alleged incident occurred on 20 August 2010 in Sanane Oetulu Sub-Village, Costa Village, Pante Makassar Sub-District, Oecusse District.

The witness BO who is the child of the defendant was summoned together with the victim, but he exercised his right to remain silent. The victim also chose not to give testimony during the hearing. However, in his final recommendation of sentence the public prosecutor maintained the charges in accordance with Article 145 of the Penal Code as well as Articles 2, 35 and 36 of the Law Against Domestic Violence.

The decision will be announced on 7 June 2011 at 2.30pm.

10.  Crime of Domestic Violence, Case No. 20/PCO/2011/TDO

The hearing was conducted on 26 May 2011 and was presided over by single judge Alvaro M. Freitas, SH, the prosecution service was represented by Afonso Lopes, SH and the defendant was represented by Calisto Tout, SH from the Public Defender’s Office.

The defendant VAB (security guard) was accused of committing domestic violence against his wife PK. The alleged incident occurred on 6 September 2010 di Masin Sub-Village, Costa Village, Pante Makassar Sub-District, Oecusse District.

It is alleged that the incident occurred at 10am when the defendant returned from work. The victim was preparing breakfast but the defendant did not have anything to eat and went to sleep immediately. Several hours later the defendant woke up and asked the victim why she didn’t wake him up to deal with the problem in the rice field (buffalo had entered the rice field). The defendant became angry and took some rice in a pot and tipped it over the victim and struck the victim in her forehead.

During the hearing the defendant and victim use their right to remain silent. The public prosecutor charged the defendant with Article 145 of the Penal Code as well as Articles 2, 35, 36 of the Law Against Domestic Violence.

The decision will be announced on 9 June 2011 at 9am.

11.  Crime of Making Threats, Case No. 17/PCO/2011/TDO

The hearing was conducted on 26 May 2011 and was presided over by single judge Alvaro M. Freitas, SH, the prosecution service was represented by Afonso Lopes, SH and the defendant was represented by Calisto Tout, SH from the Public Defender’s Office.

The defendant MP was accused of committing a crime against the victim FT. The alleged incident occurred on 3 October 2010.

The incident occurred because previously the defendant had borrowed a Mega pro Motorcycle and crashed it. At that time the defendant was heavily intoxicated. The victim sought clarification about the issue from the defendant but the defendant did not admit liability, and actually threatened the victim and refused to take responsibility or give compensation.                                                                    

The defendant did not attend the hearing even though he had been summoned by the court. Based on available information, the defendant is currently in Dili. Therefore the trial was adjourned until 27 June 2011 at 2pm.

12.  Crime of Domestic Violence, Case No. 02/PCO/2011/TDO


The hearing was conducted on 26 May 2011 and was presided over by single judge Alvaro M. Freitas, SH, the prosecution service was represented by Afonso Lopes, SH and the two defendants were represented by Calisto Tout, SH from the Public Defender’s Office.

In this case the public prosecutor charged the defendants MM (female) and CM (male) for committing domestic violence against the victim BL who is their parent. The alleged incident occurred on 18 October 2010 in Oefoko Sub-Village, Bobokase Village, Pante Makassar Sub-District, Oecusse District.

At that time the victim was heavily intoxicated and asked for money and yanked MM by the arm. At that time the defendant was holding her baby and the defendant let go of the victim’s hand and the victim who was heavily intoxicated fell to the ground, then the defendant CM came over to the victim to try and help the victim stand up, but the victim fell to the ground again.

The court scheduled the hearing to hear testimony from the two defendants pursuant to Article 269 (1) of the Criminal Procedure Code.

The two defendants, the victim and the witness KM, who was the sibling of the two defendants and had been summoned by the court, decided not to give testimony before the court or in other words to remain silent during the trial. The public prosecutor believes that the parties have not cooperated with the legal process because they have exercised their right to remain silent. For this reason the court found it difficult to obtain sufficient evidence. However, the public prosecutor maintained his charges pursuant to Article 145 of the Penal Code as well as Articles 2, 35 and 36 of the Law Against Domestic Violence.

The decision will be announced on 21 June 2011 at 2pm.

For more information, please contact: Luis de Oliveira Sampaio Executive Director of JSMP Email: luis@jsmp.minihub.org Telephone: 3323883/7295795.

Provisions of Article 125 of the Criminal Procedure Code are an obstacle for victims of domestic violence

Press Release Period : May 2011 Edition : 01 June 2011 JSMP DILI - Between 24-26 May 2011 JSMP conducted monitoring of trials taking place at the Oecusse District Court. During the three days of court monitoring JSMP observed that hearings were slightly delayed or were not in accordance with the court schedule. However all of the cases scheduled for trial were heard by the court.

According to the court schedule, 11 cases were scheduled for trial and one of these cases had two hearings to examine witness testimony. From these 11 cases, 8 cases involved crimes or were categorized as domestic violence or violence against a spouse.

The trial of the aforementioned cases were presided over by single judge Alvaro Freitas, SH, the prosecution was represented in turn by Jacinto Babo, SH and Afonso Lopes SH, and the Public Defender’s Unit was represented by Calisto Tout, SH and in one case legal representation was provided by a lawyer from F-FSO

JSMP praises the efforts of the district court, because in just three days the court was able to use the available time to hear 12 cases, which means that four cases were heard each day. JSMP praises the district court for demonstrating its productivity to ensure that court administration is functioning effectively and therefore responding to public expectations on justice.

Whilst monitoring cases involving domestic violence, JSMP noted that the majority of victims and witnesses who were summoned by the court to provide testimony exercised their right to remain silent and refused to testify against a member of their family, pursuant to Article 125 of the Criminal Procedure Code.

The Executive Director of JSMP stated that although he welcomes the policy of the judges to fulfill their obligations in accordance with Article 125 of the Criminal Procedure Code to provide an option to the parties at the outset of the trial, however the judge or the court did not explain the implications or impact of this provision if everyone chooses to remain silent and refuses to give testimony against a defendant who has allegedly committed a crime against them. 

He explained further that JSMP fully understands that the Criminal Procedure Code does not oblige the honorable judges to do so, however in reality JSMP believes that there is a need for the court to explain the implications of Article 125 of Criminal Procedure Code to victims and witnesses who are summoned by the court, especially victims in cases categorized as gender based violence.

According to Article 125 of the Criminal Procedure Code regarding refusal to give a disposition:

1.      The persons below may refuse to give a deposition as witnesses:

a). progenitors, siblings, descendants, relatives up to the second degree, adopters, adoptees, and the spouse of the defendant, spouse is a party:

b). a person who has been married to the defendant or who cohabits, or has cohabited, with the latter in a relationship similar to that of spouses, in relation to facts that have occurred during marriage or cohabitation.

2.      The authority competent to take the deposition shall, under penalty of nullity, advise the persons referred to in sub article 125.1 that they are allowed to refuse to give a deposition.

JSMP agrees that the court has the responsibility of announcing Article 125 before the trial begins, because otherwise the trial can be declared null and void, however JSMP encourages the honorable judges of the court to consider the current reality and explain the effects of the article to victims and witnesses so that justice can prevail. In addition, the court must also consider Article 118 of the Criminal Procedure Code on the general provisions that relate to victim testimony to establish the truth in cases that have been submitted to the judicial authorities.

Previously, in December 2009, JSMP and Fokupers launched a report on the provisions of Article 125 of the Criminal Procedure Code as part of the “16 day campaign to end violence against women.”

JSMP has noted on several occasions whilst conducting court monitoring that in the nearly all cases involving domestic violence the victim is the sole witness. Therefore, if the parties choose to remain silent or refuse to give testimony, how can the court reveal the facts and obtain sufficient evidence to uphold justice in the interests of the victim?

JSMP believes that most victims choose to remain silent or not to give testimony to the court, not because they have a clear understanding of Article 125 of the Criminal Procedure Code, but because psychologically they have been placed in a difficult position of testifying against a family member who has committed violence against them, or they can choose to remain silent. The provisions of Article 125 of the Criminal Procedure Code place witnesses in a very difficult position.

During the aforementioned three days of observation the Oecusse District Court conducted hearings in 11 cases involving ordinary crimes. 8 of these cases related to domestic violence, and 4 of these were cases involving women as the perpetrators of domestic violence. This shows the public that it is not always men who commit domestic violence, but women also have the capacity to do so. This also means that Law No. 7/2010 Against Domestic Violence which came into force in July 2010 is not only intended to punish men, but this law will also be applied against any person who commits domestic violence against a member of their family, including female perpetrators

JSMP hopes that in the future the courts can learn from these experiences and will try to interpret the provisions of Article 125 of the Criminal Procedure Code in a context that prioritizes the interests of justice rather than being bound by rules that have the potential to promote injustice for vulnerable groups in society.

For more information, please contact: Luis de Oliveira Sampaio Executive Director of JSMP Email: luis@jsmp.minihub.org Telephone: 3323883/7295795

Xanana: Notes Members of Government Involved in Corruption

Timor Post (Translation from Tetum) Thursday, 09 June 2011 Dili – Prime Minister Kay Rala Xanana Gusmao has asked the inspector general of the state to investigate some members of government for having committed acts of maladministration and irregularities.

“Humbly yours as Prime Minister, the president of the budget review committee, we know each other, we know each other with the ministers and know each other with you directors, sometimes knowing beforehand that the moenys will exceed the amount required, we authorise the execution of the works knowing there will be moneys left over, that later we go and get what is left over,” said the head of government, yesterday at the swearing in ceremony for the national director and head of department of the State Inspector General.

He asked the inspector general of the state to audit the work of all members of government and directors, for example the case involving a Commitment Payment Voucher made out for US$20,000.00, then amended to US$25,000.00, then after US$5,000.00 is pocketed, adding that there are some who denigrate the National Development Agency, but the agency is there to correct many things in the ministries.

“Our society, those of us who have the responsibility of serving the people, we have to acknowledge this, that this thing (corruption) exists,” PM Xanana declared.  “You (investigators) must not be afraid, go forward and do your work, do not be afraid that just because you earn two hundred and you investigate those who earn six hundred, no, do your duty and audit all ministries.”

Now the government has 60 investigators, 20 from the Timor-Leste National Police (PNTL) and 40 public servants who are being trained on investigative and auditing at the judicial training centre, so as to increase the capacity and experience, the Head of Government Xanana asked Ausaid to support their capacity building.

When these investigators are ready from the capacity building they have undergone, the state will distribute them to the relevant institutions like the Anti Corruption Commission and Inspector General of the State to strengthen the system and identify those with long arms.

“Our country has to go on the right track, so that our people can know that we really want to fix our nation,” the PM said.

JSMP has informal discussion with the Chief of the Baucau District Prosecution Unit

Press Release Period: June 2011 Edition:  14 June 2011 -JSMP has informal discussion with the Chief of the Baucau District Prosecution Unit - On 3 June 2011 JSMP had an informal discussion with the Chief of the Baucau District Prosecution Unit, José Ximenes, SH, in the JSMP meeting room. This meeting was also attended by the Director of Fokupers. The aim of this meeting was to share information between the respective organizations, as well as discussing the processing of cases with a particular focus on difficulties and challenges encountered by the prosecution unit in dealing with cases of gender based violence. This discussion took place at the initiative of the VSS and Fokupers who were concerned with a number of cases that are currently being processed.

The Executive Director of JSMP stated that this discussion was an excellent opportunity and an honor for JSMP because the chief of the Baucau District Prosecution Unit, who is responsible for implementing the law, was able to make time to visit the offices of JSMP to hold a discussion and share his view and perspective on how to strengthen support for victims of gender based violence within the legal framework that exists in Timor-Leste.

The Executive Director of JSMP also said that the example showed by this law enforcement officer reflects the desire and spirit of cooperation and openness to accept the intervention and participation of other parties in the process of strengthening support for vulnerable groups. Therefore, it is fitting to laud the spirit of cooperation shown by this law enforcement officer, because this type of behavior shows us that issues of justice should be dealt with as a collective effort and all parties have a certain level of responsibility.

During the meeting José Ximenes, SH stated that he felt very proud and it was an honor for him to visit JSMP to share his experiences and discuss the strategy of the District Prosecution Unit under his leadership, as well as the internal challenges that exist.

During the discussion the Chief of the Prosecution Unit also acknowledged the very positive contribution made by the JSMP/VSS and Fokupers who are always ready to help whenever they are required, which includes helping victims travel from their home to the prosecution unit and court.

Recognizing the need for this cooperation as well as the mutual benefits that can be gained, the Chief of the Prosecution Unit requested and encouraged JSMP to continue its commitment and cooperation in the future, and pledged that his team would always be willing to work together to provide and further strengthen support for victims who are seeking justice.   

The discussion took place over two hours and JSMP believes that this was a very positive process because it enabled both parties to explain and discuss challenges, difficulties and concerns that they have encountered to date. Also, the discussion helped the two parties to understand the difficulties/challenges faced by the prosecution on the one hand, as well as consideration of the concerns and sentiments expressed by the public in relation to justice, particularly in cases of gender based violence.

This discussion was made possible with the financial support of USAID, through The Asia Foundation (TAF) in Timor Leste.

For more information, please contact:

Luis de Oliveira Sampaio
Executive Director of JSMP
Telephone: 3323883
Email: luis@jsmp.minihub.org



Siaran  Pers

Periode  : Juni 2011

Edisi : 14 Jui  2011

JSMP melakukan diskusi informal dengan Kepala Kejaksaan Distrik  Baucau

Pada tanggal 03 Juni 2011, JSMP melakukan diskusi informal dengan Kepala Kejaksaan Distrik Baucau, José Ximenes, SH di ruang pertemuan JSMP. Dalam pertemuan ini selain JSMP, dihadiri juga oleh Direktur Fokupers. Pertemuan ini dengan tujuan selain untuk membagi informasi dari masing-masing organisasi-organisasi tersebut, juga dimaksudkan untuk mendiskusikan mengenai proses kasus terutama kesulitan atau tantangan yang dihadapi oleh kejaksaan terutama dalam kasus-kasus yang berhubungan dengan kekerasan berbasis gender. Diskusi ini dilaksanakan atas inisiatif dari VSS dan Fokupers yang merasa prihatin dengan beberapa kasus yang sedang dalam proses.

Direktur Eksekutif JSMP, mengatakan bahwa diskusi ini merupkan sebuah kesempatan yang sangat baik dan merupakan sebuah kehormatan bagi JSMP karena autoritas hukum yang mengepalai Kejaksaan Distrik Baucau bersedia untuk memberikan waktunya untuk mendatangi kantor JSMP untuk berdiskusi dan berbagi pandangan no perspektif mengenai bagaimana memperkuat dukungan terhada korban kekerasan berbasis gender dalam kerangka sistem hukum Timor Leste.

Lebih lanjut ia mengatakan bahwa contoh yang diberikan oleh autoritas hukum ini mencerminkan sebuah kemauan dan semangat kerjasama dan keterbukaan untuk menerima intervensi dan keikutsertaan dari pihak lain dalam proses penguatan dukungan kepada kelompok rentan. Oleh karena itu, kita patut untuk memberikan penghargaan dan selamat atas semangat kerjasaama yang ditujukan oleh autoritas hukum ini, karena praktek seperti ini, menunjukan kepada kita bahwa masalah keadilan harus diletakan sebagai sebuah pekerjaan kolektif dan menjadi bagian dari semua pihak.

Dalam kesempatan yang sama, José Ximenes, SH  dalam intervensinya mengatakan bahwa beliau merasa sangat bangga dan ini merupakan sebuah penghormatan baginya untuk berkesempatan mengujungi JSMP untuk membagi pengalaman dan melakukan diskusi mengenai strategi dan tantangan internal yang dihadapi Kejasaan Distrik, terutama di yurisdiksi yang ia pimpin

Selama diskusi ini, Kepala Kejajsaan ini juga mengakui kontribusi dari JSMP/VSS dan Fokupers sangat positif dan selalu bersedia setiap saat ketika diperlukan termasuk untuk memfasilitasi korban dari tempat tinggal menuju/ke kantor kejaksaan dan pengadilan.

Mencermati kebutuhan dan hasil mamfaat bersama dari kerjasama ini, beliau meminta dan mendorong JSMP untuk melanjutkan komitmen dan kerjasama seperti ini di masa mendatang dan pihaknya selalu siap untuk bekerja sama untuk menyediakan dan lebih memperkuat dukungan kepada para korban untuk mendapatkan keadilan.   

Diskusi ini memakan waktu dua jam, namun menurut JSMP bahwa proses ini sangat positif, karena memungkinkan kedua belah pihak untuk menjelaskan dan mendiskusikan tantangan dan kesulitan dan juga keprihatinan yang selama ini dihadapi oleh kedua belah pihak. Selain itu, membantu kedua belah pihak untuk saling memahami kesulitan/tantangan yang dihadapi Kejaksaan di satu pihak, dan mempertimbangkan keprihatinan dan sentimen tuntutan publik mengenai keadilan, terutama dalam kasus kekerasan berbasis gender.

Diskusi ini dilaksankan karena dukungan keuangan dari USAID, melalui The Asia Foundation (TAF) Timor Leste.

Untuk mendapatkan informasi secara lengkap, silahkan hubungi:

Luis de Oliveira Sampaio
Direktur Eksekutif  JSMP
Telepon : 3323883
Email luis@jsmp.minihub.org

8 Myths about Evictions in Dili and the Ex-Brimob Case

20 June 2011 DILI - Today at a press conference in Aitarak Laran the families of Ex-Brimob who were forcibly evicted from their homes on the 20th of January at 4am announced that they 'still wait for the State to guarantee their right to housing'. The community stated that they now walk to the Provedoria for Human Rights and Justice and will wait there for the State, the Minister for Justice the Prime Minister and the Provedor for Human Rights to resolve their case.


Here we look at 8 commonly heard misconceptions about the Brimob case and evictions in Dili.

 

MYTH: ‘The people of Ex-Brimob illegally occupied state land’



Most of the families of Ex-Brimob have lived there since 1999, when they occupied the land after the violence of 1999, widespread destruction of over 68,000 homes and large-scale displacement.



In 2002 the Government was faced with a number of policy choices, and it approved Law 1/2003, which states that all land that belonged to the Portuguese State on the 7th December 1975 and all land that was used by the Indonesian State during the occupation is now Timorese State Land.



The community of Ex-Brimob are not claiming that this land is theirs nor have they committed any criminal or fraudulent acts in order to obtain this land. They are stating simply that in 1999 they had nowhere else to go and as many other people they took it upon themselves to find alternative solutions. They did not occupy the land or homes of other private individuals but much like many communities in Dili occupied land that had previously been used by the Indonesian State, military and police.


The government has never fully implemented Law 1/2003 because this would cause tens of thousands of evictions, substantial conflict and not address any of the root causes of housing and land problems. The people of the Brimob community have lived on this land for over 11 years, they have repaired housing and built communities, many of their children have been born and raised here, they have found work in the surrounding areas and cultivated fields and gardens.


Solution: There needs to be a significant change in the current outlook on state land – state land should be viewed as a resource to be used for the benefit of poor and vulnerable communities. Policy should be aimed at creating sustainable development and securing access to land rather than on making it as easy as possible for the State to control and ‘empty’ state land for future developments.




MYTH: ‘The community of Ex-Brimob have manipulated data and made fraudulent claims’



TRUTH: This case began in 2008 when PNTL and DNTPSC officials were sent to collect data about who was living in the community. It was the state and not the community that carried out this original data. What we know for certain is that

·         At no stage was the eviction process explained to the entire community,

·         At no stage did the community agree with any of the lists (there have been 3) which were produced by government.

·          There are widespread reports of coercion evidence of collusion between the PNTL/DNTPSC joint team and the original community representatives to manipule data.The Community have reported to the authorities that many of the names which were entered onto the list and received money were people who have never lived in Brimob – these names were entered onto this list by Government officials.

·         Some 33 families who lived in Brimob have not received any compensation.

·         PNTL should not have been involved in the administration of this process or in the distribution of compensation as the competent authority is DNTSPC.

According to testimony collected by Rede ba Rai from community members Ex-Brimob was comprised of 175 families who are now living all over the city in various different locations (some are still living in tents in Ex-Brimob, some are sheltering in the ex-petitioners houses in Aitarak Laran and others have built make-shift shelters up in the mountains).


There are many different histories and stories involved in this case however it is now very difficult to assess the validity of individual claims, the time to verify whether or not all of these families had a right to compensation or alternative housing from the state was BEFORE the eviction was carried out at 4am on the 20th January.


While the state argument that there may be a number of families who should not have received compensation is probably accurate there are without doubt many more who have not received any support and have been left in a very vulnerable situation.


Solution: Evictions should only occur after rigorous consultation with the whole community. The entire eviction process should be explained in detail to the community so that they understand why and how they are being evicted and understand how much and under what conditions compensation will be given. This process should be finalised and executed to the acceptance of all parties before any forced eviction occurs. Legal support should be given to community members. This should under no circumstances be used as an excuse for the government to ignore the current plight of the ex-residents of Ex-BRIMOB




MYTH: ‘These people have already received compensation and are just trying to manipulate the situation’



TRUTH: 131 of the 175 families which lived in Brimob have received $2,000. MSS estimates that it costs the government a minimum of $4,500 to build a basic house not including the land that is needed on which to build the house. The state argues that many of these people already have access to land -- if that is the case the compensation is lacking by at least $2,500. Many of the families state that they do not have alternative land as they were displaced many years ago, many of these families have used the original $2,000 that they received in order to buy land and so now have nothing with which to build a house.


According to international standards no victim of eviction should be left in a worse situation than they were in before the eviction took place.


There was no consultation with communities about the lists of who would and would not receive compensation, how much compensation they would receive etc. Due to collusion with community representatives in 2009 many families were intimidated into accepting the original $2,000 and many accepted money stating that this was not enough for them to build their houses and that they would not leave Brimob until further assistance was given, while others accepted the money with very little information about what this would mean.


Solution: Carry out proper assessments of the situation in which communities live before evictions occur, engage in detailed discussions with communities about what will happen during the eviction process before it begins.  The objective of these consultations should be to ensure that families and communities are well provided for after evictions occur. The lack of a good state verification process should not be used to victimise communities who have not received any compensation or support.


MYTH: ‘This was a good and/or legal eviction process’


In considering whether an eviction is legal or illegal the state must consider two separate issues; firstly, whether the eviction is justified and secondly whether the eviction followed the minimum standards and guaranteed  basic human rights?

Evictions which are unjustified and/or do not follow the appropriate standardsare considered as abuses of people’s fundamental human rights and are illegal. Evictions without consultation or adequate alternatives and compensation are illegal in terms of international law.


The Ex-Brimob eviction process which was begun in 2008 has been characterized by a chronic lack of information and consultation, a lack of transparency and many allegations of corruption and intimidation*.

·         At no point was there a genuine consultation or dialogue with the community of Brimob,

·         There was much intimidation and manipulation of the community by both community representatives, government representatives and the police,

·         There was no assessement or discussions of what viable alternatives were open to the families once they were evicted and many families have been left without access to adequate housing

·         No legal support was given to the victims of the eviction, at no point were their legal rights such as the right to appeal and the right to legal counsel explained to them

·         Eviction notices were given to community representatives rather than to each family and were in a language that the community did not understand (Portuguese)

·         The eviction process has left the community without access to adequate shelter and other basic needs such as sanitation, clean water and security. It has impacted on their access to other rights such as education and employment.



Solution: A commitment should be made by the state that no more evictions will occur until legal regulations are drafted on how to carry out ‘good’ evictions and until training is given to all DNTPSC staff and police on how to carry out evictions. Regulations should be in line with the very clear international legal instruments which lay out guidelines on evictions processes.




MYTH: ‘The people must contribute to the nation and so should not ask for compensation’



TRUTH: The state has a constitutional and international obligation to guarantee adequate housing to its people. The people of both Aitarak Laran and Ex-Brimob are not claiming that they are the owners of the land or homes that they were and are occupying -- what they are saying is that in many cases they have nowhere else to go and, in the case of Ex-Brimob, that the compensation given to them was not enough to build a house.


Recognising that they must contribute, the communities originally asked that the state help them to build social housing and said that they would then pay rent or a mortgage to the state. In the absence of any such plan, and with no alternative housing they asked for compensation.


Without a doubt a strong nationalistic spirit is required in order to build the nation of Timor-Leste, reduce poverty, promote justice and further economic development but under no circumstances should this development occur at the expense of poor and vulnerable populations.


The reality is that the people of Ex-Brimob and Aitarak Laran had cobbled together a living space in the last 10 years and had re-built a community. This shelter, this community and access to other resources like schools, health services and water was taken away by the state when it carried out an illegal and forced eviction on the 20th of January in order to build PNTL housing.


To date no progress has been made on the building of the PNTL facility.


Solution: Develop a strong social housing policy and supporting mechanisms for dealing with the victims of evictions, put significant resources behind the implementation of the housing policy. pass legislation guaranteeing that people can never be made homeless or left in a worse situation because of no matter what the justification.

 

MYTH: ‘The state has no further obligations to the Ex-Brimob community’



TRUTH: The Minister of Justice herself on the 25th of January promised that the Ex-Brimob community would be given further construction materials, she authorized the community to use the IDP shelters in tasi tolu for three days as an interim measure until these construction materials were sourced and provided to the community. No preparation was made for the community on this site and the remaining IDP’s living on this site would not allow the Ex-BRIMOB community to enter. The community were then given permission by the Government to move onto the current Aitarak Laran site as a temporary measure until this support was provided.

The state has obligations under the Constitution and International law to

·         guarantee that all people have access to adequate housing,

·         respect and guarantee all the basic human rights of all its citizens,

·         monitor the situation of families after it carries out evictions,

Five months later, many families are still living in Aitarak Laran, in increasingly unsanitary and unhealthy conditions. Community members living there include young infants being born and cared for in damp tents, pregnant women, and the elderly for whom the eviction has been particularly traumatic.


Solution: The Minister for Justice must solve this case without any further delay. Representatives of the Minister must be sent in person to the community of Ex-Brimob to explain the solution, how and when it will happen and how compensation or construction materials will be shared. In the meantime the state must act within the next number of days to figure out how to monitor and provide for the humanitarian situation in Aitarak Laran. At the very minimum the state should look for other organizations who may be able to address and monitor the humanitarian situation in Aitarak Laran.




MYTH: ‘The people of Ex-Brimob are not co-operating with the state’



The people of Ex-Brimobhave sent over 50 letters to various government departments asking for assistance, further information about their case and to meet with Government. At no stage has any member of Government come to explain the situation to them.


On the 25th of January the Minister of Justice promised the community of Ex-Brimob construction materials and asked them to stay in the IDP transitional shelter in Tasi-Tolu for three days while the state prepared the materials. The transitional shelter was never prepared for the community of Ex-Brimob and 4 months later there are no construction materials.


Over six weeks ago DNTPSC gave out forms asking the families to fill in these forms in order to access assistance. Community representatives co-operated fully in this process helping DNPTSC to fill out forms and recommending to the Director of DNTPSC that the forms not be distributed arbitrarily in order to minimise corruption and also that DNPTSC put archive numbers on the forms so that they could not be easily duplicated. 154 families came to fill out these forms. So far they have not received any information from DNTPSC or the Minister for Justice about next steps in relation to these forms or when/if they are likely to receive compensation or construction materials.


Last Monday officials in DNTPSC confirmed to community leaders that these forms had been passed on and were ‘sitting on the Minister’s desk’, however officials at the Ministry of Justice replied that they had not yet received the forms.


Solution: Lines of communication between DNTPSC and the Ministry of Justice should be improved. The current position and future processes regarding the communities claims should be made clear to the community of Ex-BRIMOB so that they can be prepared to respond. The government needs to create clear lines of communication with the community of Ex-Brimob and a clear process for monitoring the case. Newspaper articles and television interviews are not appropriate ways of conveying sensitive information to vulnerable communities and are not likely to create space for dialogue and trust. Appointing a particular government authority to monitor the case and give regular updates to community members would help with this aspect of the case




MYTH: The situation in Aitarak Laran where the former residents of Ex-Brimob are living ‘is not that bad’.


TRUTH: After the Minister for Justice promised that construction materials would be provided to the community, they were sent to stay provisionally in the IDP transitional shelter in Tasi Tolu, as no preparation had been made for this the community were not allowed into this facility. 128 families were given temporary shelter in the offices of local NGO’s Laifet and Haburas. On the 4th of February with permission from the Government the community moved from this location to the Ex-Petitioners shelter in Aitarak Laran.


Oxfam originally provided some support to the Ex-Brimob community - tarpaulins, hygiene kits, family kits, water electrical pump and a water tank. Six emergency toilets were constructed, with an intended lifespan of three days.


Four months later, despite the temporary nature of the shelter, there were still over 50 families living in Aitarak Laran, in increasingly unsanitary and unhealthy conditions. Community members living there include young infants being born and cared for in damp tents, pregnant women, and the elderly and mentally disabled for whom the eviction has been particularly traumatic. In February a woman gave birth to a baby in the shelter, her and her family now live under a tarpaulin in Bairo-Pite.


Many of the tarpaulins that were distributed in February became damaged due to the weather conditions (wind and heavy rain). During the rainy season living areas got wet - it has been difficult to cook food and to get to sleep at night because people’s beds keep getting wet from the rain.


Until two weeks ago  all of the emergency toilets that were provided were full and there were no washing facilities in place.  There were no other toilets available and the people keep using these toilets, despite them being full. This unsanitary condition was impacting negatively upon the health of the community, particularly the children. Some children have been getting getting stomach aches and fever and are unable to go to school. Around the building are drainage areas where people are planting vegetables, with run-off from the toilets polluting this water. These areas also accumulate rubbish which washes into the living area during rainy periods. Many children play in this area. Many of the evicted people lost their livelihoods and are struggling to establish new ones – consequently they are facing difficulties in accessing food.


In response to this situation Haburas Foundation have supplied some basic support to the community, repairing and emptying the emergency toilets and building more sanitary washing areas however the community still live in very insecure conditions without adequate shelter from the rain and unreliable access to water. There only response from the Government has been to restrict the operations of international NGO’s that wanted to support the Ex-BRIMOB community.



Solution: Solve the case as quickly as possible so that these people can begin re-building their lives and communities. In the interim period (which should be kept as short as possible) the government needs to monitor the case and ensure that humanitarian assistance is getting to this community.



Note about statistics:

This article refers to ‘175 families’. This number is based on a list of 130 names collected by the government, a further 33 families who claim that they live in Ex-Brimob but have not received any compensation and a further 12 families who lived in Brimob received the $2,000 compensation but whose names do not appear on the government lists. The community also claim that some of the names in the original list of 130 are people who have never lived in Ex-Brimob – this data can be analyzed and has been submitted by the community to the Dili District Tribunal, the Ministry of Justice, PDHJ, the UN and the National Parliament and can be accessed in the Rede ba Rai report on the Brimob case. During the latest process of filling out the forms for the claiming of construction materials 154 of the 175 families filled out forms, some of those who did not fill out forms are families who did not make it back from the districts, community members who are accused of colluding with the authorities in 2008/2009, and presumably those who received compensation but have never lived in Brimob.



For further information please contact either Meabh or Santi at the Secretariat of Rede ba Rai - redebarai@gmail.com.


--

Land Issues Mentor
Rede ba Rai Timor-Leste (The Timor-Leste Land Network)
Fundasaun Haburas,
Rua Celestino da Silva,
Farol,
Dili,
Timor-Leste

+670 730 7800
+353 85 1461435
Related Posts Plugin for WordPress, Blogger...