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FOCUS March 2007 Volume 47

Ombudsman for Human Rights: The Case of Timor-Leste

Guteriano Nicolau*

* Guteriano Nicolau is a researcher in La'o Hamutuk.

Timor-Leste restored its independence on 20 May 2002. Its 2002 Constitution provides the legal foundation for the establishment of the needed State institutions. Since 1999 until now, the international community has been playing important roles in setting up the country's State institutions in support of good governance and democratic society. But as a young country, Timor-Leste is still in the process of devising and building these institutions. And those that already exist are still weak and fragile, despite international assistance in their establishment.

The 2002 Constitution created the Ombudsman, as part of the chapter on "Fundamental Rights, Duties, Freedoms and Guarantees." A subsequent law established the Office of the Ombudsman for Human Rights and Justice (Provedor de Direitos Humanos e Justica) pursuant to this constitutional provision. Other important institutions created by the Constitution do not yet exist.

The one-year journey of the Office of the Ombudsman for Human Rights and Justice so far does not constitute a significant period for a proper evaluation of the implementation of its mandate. The institution itself is in the process of designing its strategic mechanism to achieve its mission.

From a broad perspective, several challenges hinder the Office of the Ombudsman for Human Rights and Justice from achieving its mission. The legacy of colonialism and militaristic regime, lack of human right awareness of government officials, weak judicial system, and the agenda of donor countries are the challenges to overcome.

Nature of the institution

The Office of the Ombudsman for Human Rights and Justice is an independent institution that operates outside the government and reports to the National Parliament. Despite the newness of the concept of ombudsman among the Timorese, they expect it to play an important role on issues relating to human rights, good governance, clean government, and the fight against corruption within public institutions.

Its establishment took a long process. The Law No. 7/2004 "Approving the Statute of the Office of the Ombudsman for Human Rights and Justice" was enacted by the National Parliament in April 2004, and came into force on 26 May 2004. The National Parliament appointed on 16 June 2005 the first holder of the office (known as the Provedor). Subsequently, the Provedor appointed two deputies (one focusing on Human Rights and Justice, and another on Good Governance and Anti- Corruption) in early July 2005. In March 2006, after nine months of preparation, the Office of the Ombudsman for Human Rights and Justice (Office of the Provedor from hereon) started to operate.

The 2002 Constitution provides that the Office of the Provedor shall be an "independent organ in charge to examine and seek to settle citizens' complaints against public bodies, certify the conformity of the acts with the law, prevent and initiate the whole process to remedy injustice." (Article 27.1) The 2001 National Development Plan, on the other hand, states that the raising of awareness of the citizens about their rights is one of its visions.

The Office of the Provedor is mandated to protect the rights, liberties, and legitimate interests of persons affected by acts of government agencies or private contractors operating a public service or managing public assets on behalf of the government. It is also mandated to provide education on human rights and justice, and promote good practices in government entities. It has three specific areas of concern: human rights, good governance, and anti-corruption.

The law empowers the Office of the Provedor to promote, monitor, investigate cases, and provide advice on human rights and good governance; and to fight corruption and influence peddling. It also has the power to access facilities and premises; secure documents, equipments, goods or information for inspection; and interrogate any person who is related to the complaints before it.

The three main objectives of the Office of the Provedor are therefore the following:

First, increase the awareness of the people about human rights and justice, principles of good governance (including transparency, fairness, justice, discrimination and compliance with the law), human rights protection, and increase the accountability of the government and its agencies in the exercise of their authority.

Second, improve public ownership of the organs of governmental power; improve government performance in respecting and promoting human rights, in implementing good governance practices, and in fulfilling its human right duties and obligations derived from international treaties.

Third, combat corruption and nepotism, bad practices and human rights violations within the public agencies or by public agencies.

Mandate Implementation

During it first year of operations, the Office of the Provedor was assisted by several international institutions such as the World Bank, Office of the United Nations High Commissioner for Refugees (UNHCR), and Office of the United Nations High Commissioner for Human Rights (OHCHR). The World Bank provided some equipments and funding to support the operations of the office.

Since it started operating in early 2006, the Office of the Provedor received more than one hundred cases related to corruption, human rights violations and good governance. Under the law that created it, the Office of the Provedor recommends (after investigation) to the competent government agencies what measures to take to remedy the problems. But so far the Office of the Provedor has not been able to issue any recommendation on the cases before it. The law also requires the Office of the Provedor to submit a report with recommendations to the National Parliament before the 30th day of June of each year.

Under its human rights education program, the Office of the Provedor held several human rights training activities for the members of the police. These activities are important in raising the human rights awareness of the members of the police, and improve the credibility of the police as an institution. These concerns are significant in the context of the public fear of the police, which cause human right problems.

As part of its public awareness-raising activities, the Office of the Provedor collaborates with the National Radio Station in disseminating across the country its mandate and functions.

During the Crisis that started in 28 April 2006, the Office of the Provedor played the important role of monitoring human rights violations. It also called on the President of the Republic, the Prime Minister, and others officials to issue their respective statements that would help resolve the crisis.

This monitoring work uncovered human rights violations. However, the Office of the Provedor has not issued any report on the over-all human rights situation until now. In March 2007, with the support of non-governmental organizations (NGOs), the Office of the Provedor issued a statement asking other State institutions to follow up on the recommendations of the Independent Special Commission of Inquiry for Timor-Leste that investigated the 2006 Crisis.

The Office of the Provedor also monitored since May 2006 the plight of the internally displaced people (IDPs) during the Crisis. It collaborated with NGOs on this monitoring work. It subsequently issued a set of recommendations on how to improve the condition of the IDPs. Several of these recommendations were very helpful in improving the condition IDPs regarding shelter, security, sanitation, and other issues.

The Challenges

The Office of the Provedor faces several challenges that affect its capacity to fulfill its mandate as a human rights institution.

Legacy of colonialism and militarism

As a society that has suffered from massive human right violations and corrupted public institutions, Timor-Leste commits to avoid having these experiences again under the era of independence. With assistance from donors, Timor-Leste commits to build a democratic country that respects human rights and supports clean government. Being a new nation, Timor-Leste faces a lot of problems ranging from the public administration legacy of the Portuguese colonization and military occupation, weak judicial system, and other institutional problems. These are the problems that exist in the current situation.

While good objectives and adequate authority accompany the establishment of public administration in the country, human rights protection, good governance, governance free of corruption and nepotism are difficult to realize within the context of Timor-Leste.

The Portuguese legacy of inefficient public administration system along with the corrupt civil service legacy of Indonesia affect the current Timor-Leste public administration. This dire situation further worsened with the destruction of ninety percent of the public infrastructures promoted by the Indonesian military after the 1999 referendum.

At present, public officials in Timor-Leste do not have adequate knowledge or sensitivity to human rights. This provides an opportunity for state-sanctioned human rights violations.

With its history of state-sanctioned human right violations, building a human right culture in Timor-Leste society is a big challenge.

Weak judicial system

The judicial system of Timor-Leste is another big challenge for the Office of the Provedor. The Timorese public knows that limited human resources, language difficulties and other problems result in weak judicial system. This makes the process very slow and sometimes frustrated people who seek justice. It is claimed also that although the judicial system is constitutionally independent, in reality, it suffers from interventions from political leaders. The situation has not improved despite assistance from the international community since 1999. The failure of the international community to help provide justice for the victims of human rights violations during the past twenty-four years also contributed to the problem on rule of law and law enforcement in Timor-Leste.

The Office of the Provedor can only submit recommendations regarding measures to protect human rights. Their recommendations relating to crimes have to be implemented by the General Prosecutor. However, under the current law, the General Prosecutor does not have the legal obligation to execute the recommendations of the Office of the Provedor. The law establishing the Office of the Provedor does not obligate the General Prosecutor to undertake investigation on crimes allegedly committed by officials of public institutions, as may have been recommended by the Office of the Provedor.

And even if the Office of the Provedor establishes sufficient factual and legal bases to charge public institutions with commission of human rights violations, it is skeptical that the legal process will provide justice to the victims with the current judicial system.

Financial Dependence

Although the 2002 Constitution of Timor-Leste and the law establishing it guarantee the independence of the Office of the Provedor, it is not financially independent. The Office of the Provedor depends on the Government, particularly the Ministry of Planning and Finance, for its financial needs.

As an independent institution, with the mandate to oversee public institutions, the Office of the Provedor should be independent structurally, legally and financially. In view of the centralized financial system of the government, the Ministry of Planning and Finance acts as the micro-finance manager of all public institutions including the Office of the Provedor. While the National Parliament approves the national budget, the Ministry of Planning and Finance controls its disbursement, including that of the Office of the Provedor. It has to submit to the Ministry of Planning and Finance the financial requirements for each planned activity in requesting for budget allocation. This system creates difficulties for the work of the Office of the Provedor and raises questions about its independence.

International Assistance

The donor community has been playing important roles in setting up and assisting the State institutions of Timor-Leste either in terms of technical and financial support or provision of human resources. Theoretically, the objective of these forms of assistance is to strengthen the rule of law, democracy and the sovereignty of the country. However, as experienced by other Third World countries or post-conflict countries, the donors have their own agenda behind the assistance.

Timor-Leste, since 1999, has been receiving assistance in establishing State institutions from the United Nations Development Programme, World Bank and other bilateral assistance agencies. From 2002, many international advisors were placed within the State institutions to strengthen them. International advisors also play important roles in setting up the State institutions. While their presence aims to capacitate the State institutions, problems such as language and cultural barriers, and the communication mechanism are challenges to overcome. As a result, most of the State institutions are still fragile and that contributed to the 2006 Crisis.

The experience of the Office of the Provedor reflects this donor-agenda-driven assistance program. Within the Office of the Provedor, there are assistance programs from the World Bank, United Nations Integrated Mission in Timor-Leste, UNHCR, OHCHR, USAID and others. The different assistance programs fragment the Office of the Provedor because most donors prefer to support the Human Rights Section and leave out the Governance Section.

Structurally the Office of the Provedor has two deputies for the Human Rights and Good Governance Sections respectively. But these two sections are integrated, as underlined by the first holder of the Office. It is important that some donors pay attention to human rights. But since the mandate of the Office of the Provedor is a combination of human rights and good governance concerns, the imbalance in the support they respectively receive undermines the institution as a whole.

Conclusion

The Ombudsman is very important as an oversight institution. However, under the current context, to achieve its mission, the collaboration and coordination among stakeholders are important. The judiciary system needs to be strengthened, the human right awareness for the public needs to be increased, and the donor community should review their financial and technical assistance programs.

For further information, please contact Guteriano Nicolau in La'o Hamutuk (Institutu Timor Lorosa'e ba Analiza no Monitor Rekonstrusaun/The East Timor Institute for Reconstruction Monitoring and Analysis), P.O. Box 340, Dili, East Timor, mobile: +61(408)811373, 670-7234330; ph: 670-3325013; e-mail: info@laohamutuk.org; www.laohamutuk.org


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