Transitional Justice in the Asia-Pacific (27 page)

Nonetheless, the renewed emphasis by the UN and East Timorese government to addressing the past gave little attention to the issue of prosecutions. Although investigations into serious crimes cases were resumed, that the UN Security Council was not wholly committed to prosecutions was made evident by the fact that the SCIT was given only investigatory, not prosecutorial, powers. Moreover, in contrast to the SCIU, the SCIT was precluded by its mandate from investigating crimes committed prior to 1999 and was given even fewer investigative resources than the SCIU.
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All of this means that future prosecutions (and dealing with hundreds of outstanding indictments left pending following the closure of the former Serious Crimes Process) will depend on the East Timorese government's political will and the capacity and resources of the national justice sector, both of which appear to be limited.
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Hamstrung by geopolitical constraints, the East Timorese government continues to evince a drive towards closure, forgiveness and building diplomatic relations with Indonesia. This agenda was particularly evident in the controversial events that surrounded the Martinus Bere case, which can be seen as a litmus test of how the government would respond to indicted serious crimes defendants who returned to East Timor. This case concerned Bere, a former leader of the Laksaur militia group in Covalima, now an Indonesian citizen, who crossed the border from West Timor back into East Timor in August 2009 to attend his father's funeral. Bere had been indicted by the SCIU in 2003 for his role in the Suai church massacre in 1999 and charged with crimes against humanity. Recognised by members of his former local community, he was arrested by the police and transferred to Becora prison to await trial. Soon after this, the Indonesian foreign minister reportedly demanded the intervention of President Ramos-Horta and Prime Minister Gusmão to release Bere.
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His release occurred on 30 August, the tenth anniversary of the referendum, allegedly in order to ensure that Indonesian Foreign Minister Hassan Wirajuda would participate in the anniversary celebrations. In his speech to the nation, Ramos-Horta declared that ‘there will be no international tribunal’, asked the UN to disband the newly constituted SCIT and called for an amnesty of all crimes committed between 1974 and 2009.
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The release of Bere was widely criticised by international and national human rights activists as representing political interference in the judicial process and abrogation of the Constitution
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While an analysis of the significance of the Indonesia relationship goes some of the way to explaining the East Timorese leadership's retreat from a prosecutorial agenda, there is, however, more to it than this. I want to now turn to a discussion of the ongoing attempts by members of the East Timorese leadership (in particular Gusmão and Ramos-Horta) to introduce bills granting amnesties and pardons to East Timorese perpetrators of serious crimes. These attempts indicate that the leadership's forward-looking reconciliatory narrative can be understood, in part, as a reflection of perceived internal nation-building imperatives. In particular, the continuing debates about these issues underscore the extent to which there are deeply embedded anxieties about building national unity and establishing political legitimacy during a formative, chaotic and fluid period of nation building.

The first attempt to pass a law on amnesties and pardons occurred during the lead-up to independence, in early May 2002, when Gusmão introduced a draft bill on these matters to the Constituent Assembly, the precursor to the National Parliament.
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Given it was so close to independence, the Constituent Assembly declined to debate the law, which was reintroduced into Parliament five days after independence.
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Sweeping in its scope, the law proposed an amnesty for all crimes before September 1999 committed by East Timorese who were coerced into joining militia groups, provided the crimes were not ‘violent or bloody’
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and, in addition, conferred an amnesty on all FALINTIL fighters for past criminal conduct, provided that the conduct did not amount to war crimes, crimes against humanity or genocide.
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Despite being passed by the Council of Ministers on 25 May 2002, the law was promptly withdrawn after strong
criticism from many sectors, including national and international human rights NGOs, UNTAET and East Timorese lawyers.
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It was soon followed by another draft law on ‘Amnesty and Other Clemency Measures’, which appeared in 2004, in the lead-up to the anniversary of independence (and around the time of the SCIU's indictment of General Wiranto), the preamble of which stressed the importance of forgiving even those who have committed so-called ‘serious crimes’.
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More recently, on 4 June 2007, immediately prior to the elections, Parliament approved the law on ‘Truth and Measures of Clemency for Diverse Offences’, which included provision for amnesties for crimes committed between April 2006 and April 2007. This was widely regarded as an attempt by the then FRETILIN government to ensure that various members of the political elite (including the former Minister of the Interior, Rogério Lobato, who had been recommended for prosecution due to his role in the 2006 crisis), would either be pardoned or their cases abandoned.
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However, following a referral by President José Ramos-Horta, the Court of Appeal declared the law unconstitutional.
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Soon afterwards, on 20 May 2008, the anniversary of East Timor's independence, Ramos-Horta issued a Presidential Decree granting full or partial pardons to ninety-four prisoners, more than half the total prison population,
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including nine former militia members who had received sentences for committing serious crimes during 1999. Among those pardoned was Joni Marques, who had been convicted by the Special Panels for crimes against humanity and originally given a thirty-three-year prison sentence. Another was former Lobato who, at that point, had been convicted of distributing weapons to civilians during the ‘crisis’ of 2006. Then, in 2009, in the context of the Martinus Bere controversy and the tenth
anniversary of East Timor's independence, the President called for an amnesty for all crimes committed between 1974 and 2009.
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In order to build consensus for their agenda of amnesties and pardons, political leaders (in particular Gusmão and Ramos-Horta) have invoked popular narratives of resistance, collective struggle and national unity. These stories portray the East Timorese people as the ‘little people’ who, having engaged in a united and heroic twenty-four-year nationalist struggle against the Indonesian occupiers until they finally triumphed, should not turn against one another. Relatedly, East Timorese militia who committed violence during the 1999 referendum are sometimes depicted as not being fully responsible for their actions. This narrative was apparent in President Ramos-Horta's defence of his pardoning of Joni Marques on the grounds of ‘fairness’ in 2008:

This militia [has] already served eight years. Can you imagine? There is no Indonesian military on trial or in prison and East Timor, showing great heroism of its judicial system, keeps an idiot, an unfortunate guy, in prison.
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Political leaders have also sought to make meaning from the population's experiences of suffering and pain by transforming them into willing sacrifices for the nation. For example,
Gusmão has indicated that he does not wish to refer to those who suffered as victims, preferring the term ‘heroes’. As he stated in response to the CAVR report:

In times of sacrifice we rose to be heroes. Today, in times of peace, we are regarded as victims! Our people, the heroic and forsaken people of Timor-Leste, do not deserve to be treated with so blatant a disrespect.
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Leaders have also sought to redefine justice as ‘social justice’ rather than ‘retributive justice’ in an effort to convince the population that improving their living standards is of more value than a narrow focus on the judiciary, trials, punishment and prison. This narrative emerged soon after the referendum when Gusmão began to publicly question the resources that were being spent on imprisoning East Timorese militia, suggesting that these funds would be more effectively channelled into development:

These men, they will go to trial, they will go to prison. Who will pay for their daily life in prison? The money that you pay in taxation, instead of going to teachers and nurses, will go to prisoners. Do you accept this?
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Although no amnesty law has yet been promulgated, the fact that these laws have been continually ‘on the table’ since 2002
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and that significant numbers of pardons have been granted to those convicted of serious crimes during 1999 and the crisis of 2006, points to deep-seated anxieties amongst the political elite about the fragility of national cohesion during a formative period of nation building. As discussed earlier, there were very real concerns in the aftermath of the referendum about defusing tensions along the East Timor/West Timor border. The leadership's forward- looking, reconciliatory narratives also display an awareness of deep divisions and resentments within the East Timorese population. These divisions emerged within the coercive circumstances of the Indonesian occupation, when many had ‘collaborated’ with the occupiers, and some had committed violence against their fellow East Timorese, not only as militia in 1999, but as members of paramilitary groups, civil defence forces, the military and police. These narratives also evoke the spectre of East Timorese ‘disunity’ during the brief internal conflict between FRETILIN
and UDT in 1974 and 1975 and the leadership's anxieties about shining a torch on the violence committed by the resistance movement during the occupation. Former Falintil fighters remain a powerful constituency in present-day East Timor, and those who had perpetrated war crimes had signaled to their leaders after the referendum that they expected them to stand by them.
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That Gusmão is aware of these complexities is evident in the following statement:

When people call for justice they must understand there are no clear lines. Where do you begin? In 1974? In 1999? To take the path of justice there is no beginning and no end, and we all stay stuck in the past
.
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Given their own role in the violence of the past, key political leaders also have a collective vested interest in not stirring up discussion of these difficult and sensitive truths
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For a complex blend of reasons, then, transitional justice developments in East Timor have been marked by the increasingly prominent eschewing of a prosecutorial agenda by both the UN and the East Timorese leadership. Factors such as the perceived necessity to both powerful Western states and the East Timorese leadership of maintaining diplomatic relations with Indonesia, and internal reconciliation and nation-building imperatives, have shaped this trajectory. Despite the lack of high level prosecutions, it is too simplistic, I suggest, to characterise the transitional justice process as representing a triumph of ‘pragmatism’ over ‘principle’. Indeed, although it has been deeply enmeshed in international, regional and domestic politics, the transitional justice process has nonetheless
fostered some new and unexpected possibilities which may help to move the current debate beyond the ‘prosecutions’ versus ‘stability’ impasse and to develop a broader vision of justice.

One possibility relates to the release of the final report of bilateral
CTF,
Per Memoriam ad Spem
(
Through Memory to Hope
) in 2008. Despite the scepticism of many observers, this report was not the whitewash that many were anticipating. Handed over to Indonesian President Susilo Bambang Yudhoyono and East Timorese President José Ramos-Horta at a ceremony in Bali on 15 July 2008, the CTF report concurs with many of the CAVR's findings that crimes against humanity did occur in 1999 and that the TNI was principally responsible for those crimes.
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Moreover, it concludes that these crimes were not an aberration, but resulted from entrenched policies and practices within the Indonesian security sector.
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In addition, although it does not make explicit recommendations for a reparations scheme, it does recommend a number of measures – including the creation of a documentation and conflict resolution centre and the establishment of a commission for ‘the disappeared’ to recover information about the fate of disappeared persons – that could be seen to constitute ‘reparations’ in a collective sense.
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Significantly, by not recommending amnesties, clearing names or claiming a ‘conclusive truth’, the CTF report leaves open the possibility of future prosecutions and also presents evidence that could be used to implicate senior Indonesian officials.
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Given the East Timorese and Indonesian Presidents’ explicit endorsement of the CTF, the final report may well have more chance than the CAVR of influencing the approach of both governments to dealing with the past.

Further possibilities may emerge following the East Timorese parliament's belated decision to adopt a resolution on the CAVR and CTF reports on 14 December 2009, which occurred after repeated delays. The resolution, which owed much to the advocacy efforts of individual members of parliament and human rights NGOs, authorised a parliamentary committee to prepare concrete steps to implement the recommendations of the two reports. In response, the committee prepared two draft laws. The first law proposes the establishment of an ‘Institute for Memory’
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which would implement agreed recommendations of the CAVR and CTF, including establishing a human rights documentation centre and promoting the search for missing persons. The second law proposes a reparations program
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to provide a range of symbolic and material reparations to individuals deemed to be ‘vulnerable victims’. Although it is important not to read too much into these developments, especially as parliamentary debate on these laws has been repeatedly stalled, the fact is that a painfully slow process of negotiation has begun about these issues amongst elected representatives.
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The CTF report has also provided the basis for the establishment of a Joint Ministerial Commission that is facilitating high level cooperation between the Indonesian and East Timorese governments, including discussions of the CTF recommendations. While some issues, such as the fate of missing persons, remain off-limits due to their sensitivity, some progress has been made on the less controversial topics of border demarcation, more lenient visa conditions for East Timorese students studying in Indonesia, and pensions for East Timorese who were employed as Indonesian civil servants
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