24 August 2018

How homophobia influenced drafting of East Timor's Constitution

Image: GayStarNews
This is a republication of an article that I wrote 9 years ago under the title Homosexuality in East Timor.

I have of late been examining certain provisions of the Constitution of East Timor and, in my view, the dastardly social problem of discrimination and vilification on status, in this case sexual orientation, has its hateful genesis in the ancient sacred Christian texts and continues today even after the great struggle for freedom was won and should be enjoyed fully by all citizens regardless of sexual orientation because homosexuality was excluded from the Constitutional protections.

More recently, the second LGBT Pride Day was held last month in Dili so it is an appropriate time to support our gay brothers and sisters in East Timor and everywhere the law discriminates against them. See further East Timor's Pride parade goes back to the roots of what Pride is all about

Back to the Constitution, and how it came to be that protections for homosexual citizens were discarded. My 2009 article stands. Nothing has changed except that the gay community is now organised.

The following is also an edit made today to include extracts from the relevant provisions of the Constitution:

"PART II FUNDAMENTAL RIGHTS, DUTIES, FREEDOMS AND GUARANTEES TITLE I GENERAL PRINCIPLES

Section 16 (Universality and Equality)

1. All citizens are equal before the law, shall exercise the same rights and shall be subject to the same duties.

2. No one shall be discriminated against on grounds of colour, race, marital status, gender, ethnical origin, language, social or economic status, political or ideological convictions, religion, education and physical or mental condition."

In advanced democracies, provisions like this include sexual orientation and a host of other gender-related anti discrimination and anti-vilification legislation. These are all conspicuously absent from the Constitution of East Timor. Absent from the entire legal system.

ETLJB 25 April 2009 SYDNEY - The rights of the homosexual citizens of East Timor have proven to be a fertile ground for virulent anti-gay vilification by some of East Timor's political leaders. Discussion of the issue in the public domain has also provided an opportunity for the persecution of gay men and women in East Timor through the hysterical anti-human and anti-Christian condemnations of the Roman Catholic Church.

There is a significant gay dimension to East Timorese society. But a proposed constitutional guarantee of the rights of homosexuals in East Timor was, under pressure from the Church and with the approval of homophobic members of East Timor's national parliament, excised from an early draft of the Constitution leaving the gay community susceptible to marginalisation, discrimination and hate-motivated violence. It was on that occasion that a prominent politician denied that there were any gay people in East Timor and declared homosexuality a disease.

The Church's influence in East Timor has actually contributed to the promotion of homosexuality, principally among East Timorese men. Strict compliance with bans on pre-marital sex and an oppressive social regime that seeks to control Timorese women's sexuality in East Timor have most certainly restricted the opportunities for young East Timorese men. But primal human compulsions, in the end, so to speak, find a way of being expressed.

The protection of the rights of gay people in East Timor should not be a matter left outside the mainstream concerns of the justice system. And yet not a single cent of the millions upon millions of dollars of donor money has been dedicated to this.

Gay civil rights movements in advanced secular democracies agitated and achieved unprecedented legal recognition of equality before the law and impartial access to the protections afforded by the law to straight citizens. These achievements did not come about without a long and injurious campaign to refute the prejudices of the conservative Church and to drag the State to entrench secular anti-discrimination and anti-vilification laws and to delete a wide range of laws and policies that discriminated against homosexual people.

If East Timor is to be credibly received as a state based on the rule of law and international laws and standards as its Constitution mandates, both clear policies and legislation must be presented by the Government to the Parliament for enactment to ensure the protection of equal rights to all citizens.

Such efforts will also create a suitable legal and social environment for managing HIV-AIDS infections in East Timor.

Intrusions of religious doctrines into the formulation of social policies and legislation in East Timor is a grave error - morally, jurisprudentially and constitutionally, as it was in the drafting of the sacred Constitution of East Timor -ends-

Warren L. Wright BA LLB
Principal
Wright Law & Justice
Co-Founder HIV/AIDS Legal Centre

Postscript. After the amendment to the Australian Marriage Act 1961 to redefine marriage in genderless terms, thus legalising gay marriage, I wrote a short note pondering the issue whether East Timor would recognise Australian gay marriage

See my recent articles on the Constitution

ROCCIPI elucidates unconstitutional behaviour by President Lu-Olo

East Timor Constitution on Criminal liability of the members of Government

2018 Election: Fretilin falls, again; Xanana resurrects

East Timor President Lu-Olo Discredits Office of President & Perverts the Will of the People

On the President's Constitutional Powers on Nominations by Prime Minister of Ministers of State

A note on "unconstructive and irresponsible commentary" on the Constitution of East Timor

Constitution of East Timor: President's Role in Civil Governance by Elected Legislature and Government

East Timor: Whither Democracy?

East Timor: Democracy in Ruin by Presidential Unconstitutionality

East Timor Constitution on the Dismissal of the President
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