AGREEMENT BETWEEN THE REPUBLIC
OF INDONESIA AND
THE PORTUGUESE REPUBLIC ON THE QUESTION OF EAST TIMOR
The Governments of Indonesia and Portugal,
Recalling General Assembly resolutions 1514 (XV), 1541 (XV), 2625 (XXV) and the relevant resolutions and decisions
adopted by the Security Council and the General Assembly on the question of East Timor;
Bearing in mind the sustained efforts of the Governments of Indonesia and Portugal since July 1983, through the
good offices of the Secretary-General, to find a just, comprehensive and internationally acceptable solution to the question of East Timor;
Recalling the agreement of 5 August 1998 to undertake, under the auspices of the Secretary-General, negotiations
on a special status based on a wide-ranging autonomy for East Timor without prejudice to the positions of principle of the respective
Governments on the final status of East Timor;
Having discussed a constitutional framework for an autonomy for East Timor on the basis of a draft presented by the
United Nations, as amended by the Indonesian Government;
Noting the position of the Government of Indonesia that the proposed special autonomy should be implemented only
as an end solution to the question of East Timor with full recognition of Indonesian sovereignty over East Timor;
Noting the position of the Government of Portugal that an autonomy regime should be transitional, not requiring
recognition of Indonesian sovereignty over East Timor or the removal of East Timor from the of list of Non-Self-Governing Territories of the
General Assembly, pending a final decision on the status of East Timor by the East Timorese people through an act of self-determination under
United Nations auspices;
Taking into account that, although the Governments of Indonesia and Portugal each have their positions of
principle on the prepared proposal for special autonomy, both agree that it is essential to move the peace process forward, and that
therefore, the Governments of Indonesia and Portugal agree that the Secretary-General should consult the East Timorese people on the
constitutional framework for autonomy attached hereto as an annex;
Bearing in mind that the Governments of Indonesia and Portugal requested the Secretary-General to devise the method
and procedures for the popular consultation through a direct, secret and universal ballot;
Agree as follows :
Article 1
Request the Secretary-General to put the attached proposed constitutional framework providing for a special autonomy
for East Timor within the unitary Republic of Indonesia to the East Timorese people, both inside and outside East Timor, for their consideration
and acceptance or rejection through a popular consultation on the basis of a direct, secret and universal ballot.
Article 2
Request the Secretary-General to establish, immediately after the signing of this Agreement, an appropriate United
Nations mission in East Timor to enable him to effectively carry out the popular consultation.
Article 3
The Government of Indonesia will be responsible for maintaining peace and security in East Timor in order to ensure that
the popular consultation is carried out in a fair and peaceful way in an atmosphere free of intimidation, violence or interference from any
side.
Article 4
Request the Secretary-general to report the result of the popular consultation to the Security Council and the General Assembly,
as well as to inform the Governments of Indonesia and Portugal and the East Timorese people.
Article 5
If the Secretary-General determines, on the basis of the result of the popular consultation and in accordance with this Agreement,
that, the proposed constitutional framework for special autonomy is acceptable to the East Timorese people, the Government of Indonesia shall
initiate the constitutional measures necessary for the implementation of the constitutional framework, and the Government of Portugal shall
initiate within the United Nations the procedures necessary for the removal of East Timor from the list of Non-Self-Governing Territories of
the General Assembly and the deletion of the question of East Timor from the agendas of the Security Council and the General Assembly.
Article 6
If the Secretary-General determines, on the basis of the result of the popular consultation and in accordance with this Agreement,
that the proposed constitutional framework for special autonomy is not acceptable to the East Timorese people, the Government of Indonesia
shall take the constitutional steps necessary to terminate its links with East Timor thus restoring under Indonesian law the status East
Timor held prior to 17 July 1976, and the Governments of Indonesia and Portugal and the Secretary-General shall agree on arrangements
for a peaceful and orderly transfer of authority in East Timor to the United Nations. The Secretary-General shall, subject to the
appropriate legislative mandate, initiate the procedure enabling East Timor to begin a process of transition towards independence.
Article 7
During the interim period between the conclusion of the popular consultation and the start of the implementation of either
option, the parties request the Secretary-General to maintain an adequate United Nations presence in East Timor.
DONE in New York, on this 5th day of May, 1999.
For the Government of Indonesia
(signed) | For the Government of Portugal
(signed) |
Ali Alatas
Minister for Foreign Affairs | Jaime Gama
Minister for Foreign Affairs |
Witnessed :
(signed)
Kofi A. Annan
Secretary-General
United Nations
|
ANNEX
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 ñ 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 relevant 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 channeled 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 :
- restrict the rights of workers as recognized by law; and
- 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, RESIDENCE AND IMMIGRATION
Chapter I
Definition
Article 16
Any person,
- who was a lawful resident of East Timor prior to or in December 1975,
- whose father, mother, grandfather, or grandmother was a lawful resident of East Timor prior to or in December 1975, or
- 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, Residence 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 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 ìIndonesian
Rayaî 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 1
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 exercised 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 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 :
- To preserve internal peace and good order in East Timor; and
- 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.
Courts of First Instance
Article 40
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 of 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:
- in all cases concerning laws and regulations of Indonesia applicable in the SARET;
- 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 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 :
- in all cases concerning the interpretation of the regional laws and regulations of the SARET;
- on questions of law arising in criminal and civil cases.
Article 45
The Public Prosecutor shall be appointed, and shall have such duties, as provided for 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 :
- freedom of thought, conscience, and religion;
- the right to life, liberty, and security of person;
- freedom from torture, arbitrary arrest, detention, or exile;
- 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;
- freedom of expression in all its forms, association, and peaceful assembly;
- the right to form political parties specific to East Timor without restrictions of any kind and subject to the provision of
Article 57;
- 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;
- 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.
- the right to participate in Indonesian public and administrative services without discrimination on any grounds;
- freedom of movement throughout the territory of the Republic of Indonesia;
- the right of everyone to enjoy and participate in his or her culture;
- the right to own property and not to be arbitrary deprived of it;
- the right to protection for family life, privacy, home and correspondence;
- the right to education, including, as a minimum, the right to a free primary education for all;
- the right to an adequate standard of living, subject to available resources and capabilities;
- the right of women to full and equal participation in political, civil, economic, social, and cultural life;
- the rights of the child, without discrimination of any kind, as set fourth 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 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 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,
- the Government of the SARET may, with the consent of the Central Government enter into agreements and engage in cultural,
economic, trade, environmental, transportation, scientific, technical, tourism, and sports activities with regional governments/cities
of foreign countries and international organizations;
- the Government of the SARET may seek and obtain international development assistance with the consent of the Central
Government;
- 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 and 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-General 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 PROVISIONS
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 60
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 Executive Council of
the SARET:
- 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.
- 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.
- The Secretary-General of the United Nations, the Governments of Indonesia and Portugal 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.
- The Secretary-General of the United Nations, the Governments of Indonesia and the Transitional Council shall establish as working group
that will address transitional security arrangements.
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