ANNEX to the agreements signed by Portugal and Indonesia at the United
Nations
May 5, 1999
A CONSTITUTIONAL FRAMEWORK FOR A SPECIAL AUTONOMY FOR EAST TIMOR
PART ONE
RESPECTIVE AREAS OF COMPETENCE
Chapter I
The Indonesian (Central) Government
Section A: Foreign Relations
Article 1
The Indonesian Government, hereinafter, referred to as the Central Government,
shall have responsibility for and competence over the foreign affairs of
the Special Autonomous Region of East Timor (SARET). It shall consult the
Government of the SARET for the purpose of taking into account the views
of the Government of the SARET on issues of particular relevance to the
SARET.
Section B : Defence
Article 2
The Central Government shall have responsibility for and competence over
the external defence of the SARET, as part of the territory of the unitary
state of the Republic of Indonesia.
Article 3
For such purpose, the Indonesian armed forces (Tentara Nasional Indonesia
- TNI) shall maintain a military presence in the SARET in the context of
defending and safeguarding the external security of the SARET.
Article 4
In the event of an external armed attack, or an imminent threat of such
an attack, the Indonesian armed forces (TNI) may be deployed outside their
bases or normal areas of operation in the exercise of its duty to defend
the sovereignty and territorial integrity of the unitary state of the Republic
of Indonesia.
Section C: Economic and Fiscal Policies
Article 5
The SARET shall be a part of the Indonesian monetary and customs unit subject
to those national monetary and fiscal policies, and laws and regulations
of Indonesia which are consistent with this Agreement.
Article 6
The Central Government will continue its assistance to the development of
the SARET.
Article 7
The Central Government shall have exclusive competence over national taxation
and the Government of the SARET shall have exclusive competence over local
taxation, in conformity with the existing laws and regulations.
Article 8
Natural resources in the SARET, except those considered to be strategic
or vital under national laws, shall be under the control of the Government
of the SARET. In the exploitation of all natural resources, the Central
Government and the Government of the SARET may establish cooperative or
joint undertakings.
Article 9.
For the purposes of its overall development, the Government of the SARET
may receive foreign assistance which is to be channelled d through the Central
Government.
Article 10
The Government of the SARET can enter into domestic loans to finance part
of its budget with the consent of the Regional Council of People's Representatives
of the SARET.
Section D : Continuity of Indonesian Laws
Article 11
Indonesian laws in force upon the date of the entry into force of this Agreement
that fall within the competence of the Central Government, as defined in
this Chapter, shall remain in force for the SARET.
Chapter II
The Government of the Special Autonomous Region of East Timor
Article 12
All matters, other than those listed within Chapter I of Part One, and as
provided in other relevant provisions of this Agreement, shall be within
the responsibility and competence of the Government of the SARET.
Article 13
The powers of the Government of the SARET shall be exercised in accordance
with the provisions of this Agreement, and also in accordance with the Constitution
of the Republic of Indonesia.
Article 14
The Government of the SARET shall not:
a. restrict the rights of workers as recognized by law; and
b. reserve any occupation or public office solely to persons with East Timorese
identity.
Chapter III
Jurisdictions of the Central Government and the Government of the SARET
Article 15
The Government of the SARET shall have jurisdiction over crimes committed
in the SARET with the exception of those related to treason and terrorism,
narcotics and other international crimes, over which Indonesian laws and
jurisdiction shall prevail.
PART TWO
EAST TIMORESE IDENTITY AND IMMIGRATION
Chapter I
Definition
Article 16
Any person,
a. who was a lawful resident of East Timor prior to or in December 1975,
b. whose father, mother, grandfather, or grandmother was a lawful resident
of East Timor prior to or in December 1975, or
c. who has permanently resided in East Timor for a period of at least five
years at the time of the entry into force of this Agreement,
shall be considered to have East Timorese identity, irrespective of nationality,
and have the right to permanent domicile in East Timor.
Chapter II
Acquisition of Identity and Immigration
Article 17
The Government of the SARET shall have the exclusive right to establish
the rules and procedures under which persons who do not have East Timorese
identity may acquire such identity.
Article 18
The Central Government shall have the power to apply immigration controls
on entry into and departure from the SARET of persons who are neither citizens
of Indonesia nor have East Timorese identity, pursuant to its authority
under Article 1 of this Agreement.
Article 19
The SARET shall have the authority to issue documents to individuals in
order to identify those who have East Timorese identity.
Chapter III
Symbols of Identity
Article 20
The SARET may adopt its own coat of arms. The Indonesian national flag and
Indonesian national anthem "Indonesia Raya" shall be flown and
performed at such places and occasions as required by the existing laws
and practices.
Article 21
The SARET may participate under its own name, with the concurrence of the
Central Government, in international cultural and sports events in which
other non-state entities participate.
PART THREE
POWERS AND INSTITUTIONS OF THE SARET
Chapter I
Legislative Powers and Institutions of the SARET
Article 22
The legislative power of the SARET shall extend to all matters not within
the jurisdiction of the Central Government, as defined in Chapter I of Part
One. This power shall include, the establishment of political, economic,
and social policies in the SARET; cultural and educational matters; designation
of a second language or languages in addition to the official language,
Bahasa Indonesia; the establishment of courts of first instance pursuant
to Article 40; rules of family law and succession; and public order, including
the creation of an East Timor police force that shall be responsible for
enforcement of all laws and regulations in the SARET, in accordance with
the laws and regulations of the Republic of Indonesia.
Article 23
The SARET may adopt legislations regulating or restricting the ownership
of property by persons who do not have East Timorese identity without contravening
legitimately acquired rights.
Article 24
The SARET shall have the authority to establish a Land Claims Commission,
whose members shall be selected in accordance with the manner prescribed
for the selection of judges in Article 42, which shall make recommendations
in order to decide on all disputed claims to title over real property through
the court.
Article 25
The Regional Council of People's Representatives of the SARET
1. The legislative power of the SARET shall be vested in and exercised by
the Regional Council of People's Representatives of the SARET, elected by
persons of East Timorese identity as defined in Part Two, on the basis of
universal adult suffrage. The implementation of elections for the Regional
Council of People's Representatives of the SARET shall be further determined
by the SARET and need not coincide with national elections.
2. Members of the Regional Council of People's Representatives of the SARET
shall be persons who fulfill the eligibility requirements for membership.
No racial, ethnic, religious, nationality, or other requirement unrelated
to the exercise of the functions of a member of the Council shall be imposed.
3. Members of the Regional Council of People's Representatives of the SARET
shall be immune from legal action in respect of their oral or written statements
or actions relating to the business of the Council, or made or taken in
their capacity as members of the Council.
Chapter II
Executive Powers and Institutions of the Government of the SARET
Article 26
The executive power of the Government of the SARET shall be exercised by
a Governor who will be assisted by an Advisory Board whose members shall
be appointed by the Governor upon the recommendation of the Regional Council
of People's Representatives of the SARET.
Article 27
The Government of the SARET shall have the competence to design, guide and
implement policies and programmes and issue executive decrees and regulations
within the scope of the laws of the SARET. It shall also be responsible
for ensuring that all laws and regulations applicable in East Timor are
faithfully administered and enforced'
Article 28
The Governor of the SARET shall be elected by a majority of the members
of the Regional Council of People's Representatives of the SARET and responsible
to it. The list of candidates for the post of Governor of the SARET shall
first be consulted with and approved by the President of the Republic of
Indonesia.
Article 29
The Governor-elect shall be formally confirmed to the post by the President
of the Republic of Indonesia and shall be formally invested before the Regional
Council of People's Representatives of the SARET.
Article 30
The Governor shall designate officials who shall be in charge of the executive
services and other bodies of the SARET.
Article 31
The Government of the SARET shall have responsibility for the maintenance
of public order in East Timor and for the administration and enforcement
of all laws and regulations within the SARET.
Article 32
There shall be a Police Force of the SARET which shall be organized in accordance
with regional laws.
Article 33
The Police Force of the SARET shall be subject to the authority and control
of the Government of the SARET.
Article 34
Members of the Police Force of the SARET shall be recruited, without discrimination
on racial, ethnic, or religious grounds.
Article 35
The primary functions of the Police Force of the SARET shall be:
a. to preserve internal peace and good order in East Timor; and
b. to maintain and, as necessary, enforce the law in an impartial and objective
manner.
Chapter III
Judicial Powers and Institutions of the SARET
Article 36
The judicial power of the SARET shall be vested in and exercised by an independent
judiciary.
Article 37
The judiciary of the SARET shall have jurisdiction over all civil, criminal,
administrative, and other matters that fall within the competence of the
SARET.
Article 38
In any civil suit, with the consent of all of the parties to such suit,
the judiciary can apply any customary law applicable between such parties
and recognized as such by the judiciary of the SARET.
Article 39
The judiciary of the SARET shall consist of such Courts of First Instance
as may be established by regulations of the SARET, a Court of Appeal, a
Court of Final Appeal and a Public Prosecutor.
Article 40
Courts of First Instance
1. There shall be Courts of First Instance in the SARET for the administration
of justice. Such courts shall have such original civil, criminal and administrative
jurisdiction as may be necessary to administer the laws in force in the
SARET.
2. The Courts of First Instance shall consist of such judges as may be required
for the proper administration of justice.
Article 41
The Court of Appeal
1. There shall be a Court of Appeal, consisting of a President and as many
other judges as may-be required, which shall have appellate jurisdiction
from judgments of the Courts of First Instance.
2. The Court of Appeal also shall have original and appellate jurisdiction
over all cases that concern the interpretation of Indonesian laws applicable
to the SARET or the interpretation of Parts One, Five and Six of this Agreement.
3. The President of the Court of Appeal shall be appointed by the Chief
Justice of the Supreme Court of the Republic of Indonesia, upon the recommendation
of an independent Judicial Commission, which will be established in accordance
with procedures adopted by the Regional Council of People's Representatives
of the SARET.
Article 42
Judges of the Courts of First Instance and the Court of Appeal shall be
selected by the Judicial Commission.
Article 43
The Judicial Commission also shall be responsible for disciplinary and other
issues related to judicial performance, as specified by the Regional Council
of People's Representatives of the SARET.
Article 44
Court of Final Appeal
1. The court of final appeal of the SARET shall be the Supreme Court of
Indonesia.
2. An appeal shall lie from decisions of the Court of Appeal to the Supreme
Court of Indonesia which is the right of the disputing parties:
a. in all cases concerning laws and regulations of Indonesia applicable
in East Timor;
b. in all cases concerning the interpretation of this Agreement, provided
that the Supreme Court shall establish a special chamber to hear such cases
composed of an odd number of judges drawn from the Supreme Court of Indonesia
and ad hoc judges drawn from the East Timor Court of Appeal of the SARET.
3. An appeal shall lie from decisions of the Court of Appeal to the Supreme
Court of Indonesia with the leave of the Court of Appeal:
a. in all cases concerning the interpretation of the regional laws and regulations
of East Timor;
b. on questions of law arising in criminal and civil cases.
Article 45
The Public Prosecutor shall be appointed, discharged and shall have such
duties, as provided for by the regional laws and regulations of the SARET.
PART FOUR
PROMOTION AND PROTECTION OF HUMAN RIGHTS
AND FUNDAMENTAL FREEDOMS
Article 46
The Central Government and the Government of the SARET shall promote, protect
and respect human rights and fundamental freedoms without discrimination
of any kind, as set forth, inter alia, in the Universal Declaration of Human
Rights, the 1993 Vienna Declaration on Human Rights and the Decree of The
People's Consultative Assembly No. XVII/MPR/1998 Concerning Human Rights.
These rights and fundamental freedoms include:
a. freedom of thought, conscience, and religion;
b. the right to life, liberty, and security of person;
c. freedom from torture, violence, arbitrary arrest, detention, or exile;
d. the right to a full and fair hearing by an independent and impartial
tribunal in the determination of any civil rights or obligations or any
criminal charge;
e. freedom of expression in all its forms, association, and peaceful assembly;
.
f. the right to form political parties specific to East Timor without restrictions
of any kind and subject to the provision of Article 57;
g. the right to participate in government without discrimination, through
free periodic elections and non-discriminatory access to public service,
subject to the provisions of Article 25;
h. the right to participate in Indonesian national political life, including
the right to vote in general elections and to be elected as a member of
the Indonesian national Parliament or be appointed as a member of the People's
Consultative Assembly;
i. the right to participate in Indonesian public and administrative services
without discrimination on any grounds;
j. freedom of movement throughout the territory of the Republic of Indonesia;
k. the of everyone to enjoy and participate in his or he! culture;
l. the right to own property and not to be arbitrarily deprived of it;
m. the right to protection for family life, privacy, home and correspondence;
n. the right to education, including, as a minimum, the right to a free
primary education for all;
o. the right to an adequate standard of living, subject to available resources
and capabilities;
p. the right of women to full and equal participation in political, civil,
economic, social, and cultural life;
q. the rights of the child, without discrimination of any kind, as set forth
in the UN Convention on the Rights of the Child.
PART FIVE
RELATIONSHIP BETWEEN THE CENTRAL GOVERNMENT
AND THE GOVERNMENT OF THE SARET
Article 47
The Central Government shall take into account the views of the Government
of the SARET in the adoption of laws, regulations and policies within the
competence of the Central Government that may have a direct effect in the
SARET.
Article 48
In the implementation of those laws, regulations or policies of the Central
Government that are applicable in the SARET, as set forth in Chapter I of
Part One, the Government of the SARET shall coordinate, with the relevant
offices of the Central Government.
Article 49
The Central Government shall appoint a senior official, who shall reside
in Dili, to exercise the competences of the Central Government in the SARET,
and to coordinate and supervise such Central Government officials in the
SARET as may be necessary to assist the Government of the SARET in the implementation
of laws, regulations and policies within the competence of the Central Government,
as set forth in Chapter I of Part One, and to perform the functions provided
for in Article 50 below.
Article 50
The Central Government and the Government of the SARET may create bodies
or other arrangements to facilitate consultation, cooperation and coordination
on such matters as police matters, tourism, transportation, telecommunications,
education, health and the environment.
Article 51
In the performance of its duties, the Police Force of the SARET shall consult
and cooperate with the Central Government authorities with respect to the
enforcement of Indonesian national laws in the SARET.
Article 52
The Police Force of the SARET shall take the necessary action, at the request
of the Indonesian National Police to apprehend persons in the SARET accused
of having committed crimes outside the SARET.
Article 53
The Indonesian National Police shall take the necessary action, in cooperation
with the Police Force of the SARET, to apprehend persons outside the SARET
accused of having committed crimes in the SARET.
Article 54
In exceptional cases the Indonesian National Police will assist the Police
Force of the SARET in the performance of its functions.
PART SIX
RELATIONSHIPS BETWEEN THE SPECIAL AUTONOMOUS REGION OF EAST TIMOR AND OTHER ENTITIES
Article 55
Without prejudice to the responsibility and competence of the Central Government,
as set forth in Article 1,
a. the Government of the SARET may, with the consent of the Central Government
enter into agreements and engage in social, cultural, trade, environmental,
transportation, scientific, technical tourism, and sports activities with
regional governments / cities of foreign countries and international organizations;
a. b the Government of the SARET may seek and obtain international development
assistance with the consent of the Central Government; and
b. foreign governments may open, with the consent of the Central Government,
non-diplomatic representative offices in the SARET.
PART SEVEN
THE UNITED NATIONS
Article 56
The United Nations Secretary-General shall have the responsibility and authority
to monitor arid verify compliance with this Agreement. This authority includes
monitoring the election of members of the Regional Council of People's Representatives
of the SARET and verifying that such elections are free and fair. For this
purpose, the United Nations Secretary-Genera! may establish in the SARET
such offices as he deems necessary which would operate within a specific
time-frame to be further agreed upon between the United Nations and the
Indonesian Government.
PART EIGHT
GENERAL PROVISION
Article 57
The special autonomy for East Timor as provided in this Agreement is granted
within the framework of the Constitution of the Republic of Indonesia.
PART NINE
BASIC LAW OF THE SARET
Article 58
The SARET shall be governed by a basic law, enacted by the first elected
Regional Council of People's Representatives of the SARET and which shall
be in accordance with the provisions of this Agreement.
PART TEN
TRANSITIONAL PROVISIONS
Article 59
The following provisions shall be in effect during the time between the
entry into force of this agreement and the election and assumption of office
by the Regional Council of People's Representatives of the SARET and the
Government of the SARET:
a. There shall be a broadly representative Transitional Council, composed
of no more than 25 persons of East Timorese identity, whose members shall
be appointed by the United Nations Secretary-General in consultation with
relevant individuals and groups within the SARET and . with the Government
of Indonesia.
b. The Transitional Council can enact the regional laws and regulations
for the election of the first Regional Council of People's Representatives
of the SARET and for such subjects as may be agreed upon by the parties
to this Agreement, in accordance with existing laws, while maintaining the
smooth functioning of the general administration, public services and public
order.
c. The Secretary-General of the United Nations, the Government of Indonesia
and the Transitional Council shall engage in consultations to ensure the
effective implementation of this Agreement, and the smooth and peaceful
process of transition in the SARET.
d. The Secretary-General of the United Nations, the Government of Indonesia
and the Transitional Council shall establish a working group that will address
transitional security arrangements.