C O N F I D E N T I A L SECTION 01 OF 02 DILI 000232

SIPDIS

SECSTATE FOR EAP/MTS
TOKYO FOR HANS KLEMM
USUN FOR RICHARD MCCURRY
SIPDIS

E.O. 12958: DECL: 6/20/2017
TAGS: PGOV PHUM KJUS TT
SUBJECT: PROMULGATION OF PROBLEMATIC AMNESTY LAW UNLIKELY FOR NOW


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CLASSIFIED BY: Elizabeth S. Wharton, Political / Economic
Officer, U.S. Embassy, Dili, East Timor, Department of State.
REASON: 1.4 (b), (d)

1. (C) Summary: The National Parliament on June 4 approved a Law
on Truth and Measures for Clemency for Various Infractions,
stipulating that amnesty be provided for a wide array of
offenses so long as they were committed between April 20, 2006
and April 30, 2007. If promulgated, the law would have a
dramatic impact, encompassing a large number of the individuals
recommended for prosecution by the UN Special Commission of
Inquiry for their role in the 2006 crisis, as well as a large
number of individuals implicated in the increased volume of
common crimes that accompanied the crisis period. The law has
come under immediate criticism by civil society groups and
international observers. In addition to objections that it will
perpetuate a culture of impunity, critics note that it is badly
drafted, containing provisions at odds with the constitution,
ambiguity regarding how it is to be applied, and internal
inconsistencies. Although it remains unpromulgated, the lawyer
for convicted and jailed former Interior Minister Rogerio Lobato
has already attempted to cite it to benefit his client. At this
point, it appears there is no immediate risk of it being signed
into effect by President Jose Ramos-Horta, who has informed us
he is refering it to the Court of Appeals for constitutional
review and will wait until after elections to take any action.
However, while Ramos-Horta noted that the current draft is
problematic, he nonetheless registered his support for some form
of amnesty law. We will continue to track this issue and
emphasize the importance of accountability. End summary.


2. (U) On June 4, the National Parliament approved a Law on
Truth and Measures for Clemency for Various Infractions by a
vote of 44 in favor, with 2 abstentions and no votes against.

Opposition Members of Parliament from several parties walked out
in protest before the vote, leaving just one MP above the
required quorum in place. The law declares that amnesty shall
be granted for a wide array of offenses so long as they occurred
in the period from April 20, 2006 through April 30, 2007.
Offenses eligible for amnesty encompass over 150 articles of the
Indonesian Penal Code, which continues to be applied in East
Timor pending passage of a Timorese penal code to replace it.
Also included are offenses defined in UN Transitional Authority
for East Timor (UNTAET) regulations on firearms and military
discipline. Among the offenses covered are: maltreatment and
assault; negligence resulting in harm or death; theft and
burglary; extortion and blackmail; embezzlement; fraud; crimes
against the security of the state; crimes against public order;
crimes against public authority; defamation (except if done via
the media); crimes endangering the general security of persons
and property; and most military and police disciplinary
offenses. Several offenses are explicitly excluded from
eligibility for amnesty such as crimes of homicide accompanied
by direct malice; sexual crimes where the victim is under 14;
drunk driving and drug trafficking.


3. (C) On June 18, a domestic NGO the Judicial System Monitoring
Program (JSMP) published its initial analysis of the law,
criticizing it as unconstitutional, containing a number of
contradictions and ambiguities, and ultimately not in the public
interest. JSMP characterized the legislation as "more political
than judicial in nature" and apparently designed with "the
intention of protecting certain individuals and groups who wish
to evade prosecution". JSMP is not alone in its criticism. The
Prosecutor General, Longinhos Monteiro, shared his view with us
in a June 13 meeting that it was "totally unbelievable" and one
analyst at the UN Human Rights Unit has reportedly described it
as the "worst piece of legislation I've ever seen". Beyond the
objections to the breadth and type of offenses covered, some of
the specific issues cited in these criticisms include:
-- the law defines eligibility for amnesty, but is unclear
regarding who is empowered to grant amnesty or clemency, and
through what process;
-- the law allows for the cancellation of court judgments, in
clear contradiction with the constitution which states in
Article 118 that "Court decisions shall be binding and shall
prevail over the decisions of any other authority."
-- the law grants broader amnesty to moral actors than to direct
actors, that is the person who gave the order may receive
amnesty, while the person who carried it out may not;
-- the entire document is remarkably badly drafted and
confusing, containing a number of errors that could complicate
application.

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4. (C) The law if promulgated would clearly have a wide and
dramatic impact. With the exception of those found to have
committed homicide with deliberate intent, many individuals
recommended for prosecution in the UN Special Commission of
Inquiry (COI) report, which examined the events of April-May
2006, for crimes such as weapons distribution to civilians,
would benefit. The vast majority of cases arising from mob and
gang violence during the crisis period would be cancelled. The
multiple cases of F-FDTL transgressions while manning static
security posts in Dili in the March-April, 2007 timeframe also
appear to be eligible. Despite the lack of promulgation,
Rogerio Lobato's lawyer has already made written appeals to the
Prosecutor General and Court of Appeals to free his client on
the basis on the new law.


5. (C) In order to be promulgated, the law must first be signed
by the President and then published in the Jornal de Republica
(National Gazette). In a meeting with Charge d'Affaires on June
20, President Ramos-Horta told us he had sent the law for review
to the Court of Appeals, but that he would take no action until
the new Parliament was in place following the June 30 elections.
He said he was not opposed in principle to an amnesty, but that
the law as sent to him was problematic, appearing to be
"tailor-made" for certain cases. He emphasized the need for
greater consultation before such a law is developed and said
that he would prefer a more far-reaching amnesty that, except
for the most brutal cases, would extend back to 1975.
Ramos-Horta added that the imprisonment of former Interior
Minister Lobato underscored the case for amnesty. If Lobato was
in prison, Ramos-Horta said, then former Minister of Defense
Roque Roderiguez and Defense Force Chief Brigadier Taur Matan
Ruak, considered a hero of the resistance, should logically be
as well. Trying and jailing Ruak in particular could lead to
trouble with Falantil veterans in the F-FDTL. Ramos-Horta said
he would raise issues such as these in discussions with the
Church and other civil society elements in July, and then would
produce a better plan for clemency. Ramos-Horta added that he
was separately looking into his authority to issue pardons more
generally on humanitarian grounds.


6. (SBU) Comment: While there is no doubt that the judicial
system is overloaded with 2006 crisis cases, Post concurs with
the assessment that this is a bad law. Aside from its shoddy
drafting and ambiguities, the message such an almost all
encompassing amnesty would send to the population at large
regarding lack of accountability at all levels would be highly
counter productive. Also of concern is the Parliament's passage
of such a potentially important piece of legislation during its
last few weeks in power in the lead up to elections. In light
of both the quality of the law and the unlikelihood that it will
be promulgated, this is an unimpressive addition to the closing
history of East Timor's first parliament. Post will continue to
monitor this issue closely and emphasize the importance of
credible accountability to effectively move beyond the events of

2006. End comment.
RECTOR