17 December 2012

Draft Laws on Reparations and Public Memory Institute not yet enacted after more than10 years since restoration of independence

ETLJB 17 December 2012 - On the 10 December 2012, Timor-Leste celebrated International Human Rights Day through an official session at the National Parliament and ‘Dr. Sergio Viera de Mello Human Rights Awards’ were made to recipients. The celebration was attended by the President, members of the National Parliament, the Prime Minister and his ministers, the former President of Timor Leste Mr. Jose Ramos Horta, representatives from other government institutions, the diplomatic corps and other members of civil society.

In his address, the President state, among other things, that the awards “provide encouragement for those who have dedicated themselves to helping others to achieve better lives”.

In this regard, East Timor’s leading law and justice civil society organisation, the Judicial System Monitoring Program, took the opportunity to note that the conferring of the Dr Sergio Viera de Mello Human Rights Award is a good practice to demonstrate that state’s commitment to human rights, JSMP noted that, in addition, the State should be obliged to ensure that each citizen is able to enjoy his or her basic rights as provided for in the Constitution. Accordingly, JSMP, in a press release on 11 December 2012, urged the State to do everything possible to guarantee these rights."

According to JSMP, the right to justice for victims of past human rights abuses is a fundamental human right and has urged that the State, through the National Parliament, discuss, enact and promulgate two important draft laws that have been pending in the National Parliament for some time; namely; the Draft Law on Reparations and the Draft Law on a Public Memory Institute.

ETLJB respectfully agrees with the remarks by JSMP on these draft laws. Being of such central importance, it is difficult to discern the reason for the substantial delay that has occurred in the enactment of those draft laws.

One of the basic considerations in the legislative process is the cost-benefit analysis. Perhaps it is from the perspective of the cost that would arise from the reparations law that is delaying its enactment because so many people had their basic rights violated by both the Indonesian state apparatus and its local proxies and, if the reparations were to include the payment of compensation in the form of money to the victims, then it might be anticipated that the cost of that would be extremely high if it were to be just compensation and not just some nominal compensation.

In this regard, the definition of reparations is measures taken by the state to redress gross and systematic violations of human rights law or humanitarian law. Reparations are usually in the form of material benefits such as money or property. Ordinarily, reparations are paid by the perpetrators but what chance is there of the Indonesian state making reparations for the human rights violations that it and its institutions such as the Indonesian military committed in East Timor during the occupation? In any event, that would require legislation to be enacted by the Indonesian parliament (Dewan Perwakilan Rakyat) not the East Timorese parliament. (see further Note 1 below)

The only other alternative would be to compel individual perpetrators who have or who might in the future return to East Timor from Indonesia but that does not appear as a realistic alternative. But the so-called reconciliation process has seen perpetrators of serious crimes "forgiven" or been required to pay highly disproportionate compensation to vicitms, if any, and have been allowed to walk away from real justice.

Part of the problem of reparations is the quantification of the losses and damages caused by violations. How does one assess and quantify the price, for example, of psychological injuries, let alone the loss of limbs, senses or other permanent physical injury. In statutory schemes that exist, for example, in Australian jurisdictions for the compensation of injuries suffered in the work place or in motor vehicle accidents, there are tables of the types of injuries and a pre-determined amount of compensation that is payable to the injured person for particular injuries (including psychological injuries.

There follows a table that sets out those matters for head and neck injuries:

Brain Damage
$9,875 to $257,750
Minor head injury
$1,400 to $8,100
Facial Injuries

Cheek bones
$1,500 to $10,100
Jaw fractures
$4,100 to $29,000
Facial disfigurement
$2,500 to $62,000 (females)/$2,500 to $42,000 (males)
Eye Injuries
$2,500 to $172,500
Ear Injuries
$8,000 to $70,000
Whiplash/General Neck

$850 to $95,000
Psychiatric Damage

Chronic fatigue Syndrome
up to $32,000
Post-traumatic stress disorder
$2,500 to $64,250

There would be adjustments made to such amounts of compensation in the context of East Timor taking into account the economic and financial circumstances of the country but this table demonstrates that it is possible to quantify the losses caused by injuries and the amounts that might be payable to victims who have suffered injuries as a result of a violation of their rights.

It may be that it is such aspects of any draft law on reparations that is causing the Parliament to baulk at the enactment of a reparations law for citizens who suffered injuries resulting from violations of their human rights. The only source of funds for any compensation scheme would be the East Timorese State itself but it was not the perpetrator of the violations and it is doubtful whether the state could or would be prepared to provide the necessary amounts of money to make a reparations scheme meaningful for those who suffered during the Indonesian occupation of Timor-Leste. So, while the idea of reparations for past human rights abuses in East Timor seems like a simple and clear case, that is not the case when the foregoing considerations are taken into account.

Note 1. Legally, reparations are compensation for an injury; redress for a wrong inflicted.

The losing countries in a war often must pay damages to the victors for the economic harm that the losing countries inflicted during wartime. These damages are commonly called military reparations. The term reparation may also be applied to other situations where one party must pay for damages inflicted upon another party.

In the twentieth century, military reparations have been extracted from Germany twice. After Germany's defeat in World War I, the Allies conducted a peace conference in Paris at which they drafted the Treaty of Versailles (225 Consol. T. S. 188 [June 28, 1919]) which was extremely harsh toward Germany. Germany was compelled to deliver to the Allies one-eighth of its livestock and provide ships, railroad cars, locomotives, and other materials to replace those it had destroyed during the war. Germany also had to provide France with large quantities of coal as reparations.

The treaty required Germany to pay large yearly sums of money to the Allies, but it did not set the total amount due. A reparations commission, which was created to determine the amount, decided in 1921 to set total cash reparations at about $33 billion.

Efforts to collect the reparations failed, primarily because the German economy was in dire straits in the 1920s. U.S. financier Charles G. Dawes presided over a committee of experts to deal with this problem. In 1924 the Allies and Germany adopted the Dawes Plan, which reorganized the German national bank, placed stringent economic controls on Germany, and provided for loans to Germany, all to improve the German economy so that the country could make reparations. In 1929 Germany renegotiated its reparations requirements with the Allies. A committee headed by U.S. representative Owen D. Young reduced the amount Germany owed and ended foreign controls over the German economy. Even this reduced amount of reparations was not paid. When Adolf Hitler came to power in 1933, he repudiated the Treaty of Versailles and the reparations provisions.

In the twentieth century, the term reparation has come to imply fault. However, in some circumstances nations may pay for damages inflicted by their armed forces without admitting fault or legal liability, by offering compensation ex gratia, which is Latin for "out of grace." Such payments are usually made for humanitarian or political reasons.

1. JSMP Press Release 11 December 2012 Celebration of International Human Rights Day: JSMP urges the National Parliament to discuss, enact and promulgate the draft law on Reparations and the draft law on a Public Memory Institute.
2. Australian Claims Authority Web Site, Compensation Payout Guide at http://www.claims.com.au/compensation-payouts. Accessed 17 December 2012.
3. The Free Dictionary by FARLEX definition of "reparations" at http://legal-dictionary.thefreedictionary.com/reparation Accessed 17 December 2012.

Author: Warren L. Wright BA LLB

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