Timor-Leste (East Timor)


Report of Scoping Mission to Timor-Leste (RDTL) from 20 June to 1 July, 2004 by Dr. Leon E. Irish, President of the International Center for Civil Society Law and Prof. Karla W. Simon, Professor of Law at the Catholic University of America.

Several significant outcomes were achieved during the visit

  1. meetings with representatives of over 15 national and international NGOs/CSOs working in T-L;
  2. several meetings with various UN representatives, including UNDP, UNV, UNMISET, as well as with the SRSG;
  3. everal meetings with academics, researchers, the Reverend Bishop, the Chief of Staff of the Office of the President, diplomats, representatives of multilateral (World Bank) and bilateral aid agencies, etc.;
  4. several meetings with government officials, including representatives of the Ministries of Justice (MOJ) and Planning and Finance (MOPF), as well as the East Timor Revenue Service (ETRS); and
  5. a first-rate workshop where issues with regard to "Promoting an Enabling Environment for Civil Society in Timor-Leste" were discussed among the approximately 50 people present.

Next steps were discussed in Dili to address the concerns faced by UNDP as it moves forward with part of its Programme of Support for Civil Society Organizations in Timor-Leste.

The report is divided into two parts - one procedural and one substantive. The substantive portion addresses the following:
  1. a technical analysis of the current draft laws that deal specifically with the enabling legal environment for NGOs/CSOs in RDTL
    1. the proposed law on associations and foundations (MOJ)
  2. the proposed law dealing with tax exemptions, etc. (MOPF)
  3. an analysis of possible laws or regulations that may affect the enabling environment
  4. s
    1. creating coordinating mechanisms for all NGOs/CSOs within the various ministries
    2. creating a mechanism for financial controls on the activities of NGOs/CSOs, including their access to foreign funding
  5. a discussion of ancillary legislation that may have a detrimental impact on the enabling environment for civil society (e.g., the criminal defamation law; controls on media; lack of a freedom of information law, etc.)

The procedural portion addresses the following:
  1. Obtaining high level UNDP support for a collaborative process between government and civil society on developing good legislation for the NGO/CSO sector at the highest level of government (this is consistent with Intended Outcome 3, Output 3.1 of Annex 17 of the Programme Package Document of July 2003);
  2. Obtaining support for placing a skilled lawyer from Mozambique in the Ministry of Justice to assist in drafting the law on associations and foundations (the recommended person is Jorge Graca);
  3. Encouraging the development of an NGO/CSO-led effort to develop an alternative concept paper/draft legislation through a collaborative process involving both local and international NGOs/CSOs;
  4. Beginning to plan for a large conference tentatively scheduled for January 2005 to discuss the government draft and alternatives; and
  5. Developing a process for our ongoing provision of technical assistance to the NGO/CSO and government drafting efforts (OSI will be furnishing additional copies of the Guidelines as well as permission to translate the book into Bahasa Indonesian).

Legal Analysis

Background

Section 3.1 of Regulation No. 1999/1, the United Nations Transitional Administration in East Timor (UNTAET) declared that the laws applied in East Timor prior to 25 October 1999 shall apply in East Timor insofar as they do not conflict with seven listed Human Rights conventions or a regulation or directive issued by UNTAET. Article 165 of the Constitution of the Democratic Republic of East Timor, which entered into force on 20 May 2002 provides that "laws and regulations in force in East Timor shall continue to be applicable to all matters except to the extent that they are inconsistent with the Constitution or the principles contained therein." The effect of these two provisions is that the provisions of the laws of Indonesia applicable to associations and foundations (yayasans) have been and continue to be in effect in Timor Leste, with the exception of the Law on Social Organizations, Law No. 8 of 1985. This law gave the Ministry of Home Affairs the power to dissolve any non-governmental organization if it conducts any activities that interfere with security and order, receives a donation from foreign institutions without government consent, or gives assistance to foreign institutions that may harm the nation. Although this law is still in effect in Indonesia, it is clearly inconsistent with the internationally protected right of freedom of association and was rightly ruled by UNTAET not to apply to East Timor. Not only are Indonesian laws affecting foundations and associations (collectively, "NPOs") still effective in Timor Leste (except for No. 8/1985), they have been used to establish legally recognized foundations and associations. (The lack of any notaries public in Timor Leste has been overcome by having the documents sworn and signed before the District Court in Dili.) Nevertheless, there is a strong desire in the Government of Timor Leste ("GOTL") to replace all Indonesian laws with TL laws. As a result, two drafts affecting NPOs have been prepared. A draft Law for Non-Profit Associations and Foundations was prepared by a foreign consultant and sent forward to the Council of Ministers. It was sent back without any substantive comments in order to have the draft put into proper Portuguese. It is back at the Ministry of Justice (MOJ) and will be redrafted soon. There is no way of knowing whether significant and substantive changes will be made when it is redrafted or whether the MOJ lawyers will simply rewrite it into proper Portuguese. There is also no way of knowing whether the individual ministries or the Council of Ministers will make substantive changes or additions to the draft law before sending it to Parliament.

General Comments

The following comments are based on a rather poor English translation of the inadequate Portuguese law. Because the document made available is an early draft that suffers from a number of language problems, these comments will not parse the fine language of the draft. In general, it is clear, however, that the draft law is a standard law for allowing the registration of foundations and associations. There are a number of serious deficiencies, but overall the draft law does not evince any intention to control or repress NPOs. [further substantive comments redacted because they are confidential under agreement with UNDP].