Saturday, 19 May 2012
Morality, Religion and the Law - Abortion and Prostitution in East Timor
Following recent tensions in East Timor between the Roman Catholic Church and the Government in which the issue of the inclusion of religion in school curricula seemed central, a Joint Declaration was signed on 07 May 2005 by representatives of the Government and the Church. It was not signed by Islamic religious authorities in East Timor. An English translation of the text of the declaration appears below.
These tensions saw assemblies take place in Dili and the mobilisation of the security forces. Very little was heard, at least in Australia, about this phenomenon which highlights not only the relationship between the Church and State in East Timor and the articulation of the criminal law in respect of abortion and prostitution, but also informs us to a certain extent of the relationship between the Government and the people. In regard to the latter, it is worth noting the provisions of clause 7 of the Declaration:
While the demonstrations were largely attributed to the issue of the teaching of Christianity in Government schools in East Timor, the opportunity was also taken to include a demand that prostitution and abortion be criminalised in East Timor.
Clause 6 of the Declaration provides that:
Catholic doctrine proscribes abortion as "gravely contrary to the moral law". Since the the first century, "the Church has affirmed the moral evil of every procured abortion "and condemns abortion as an abominable crime. [Catechism of the Catholic Church clause 2271] Prostitution is described by the Church as a social scourge and states that it is "always gravely sinful to engage in prostitution". [Catechism clause 2355].
While Catholics are morally bound by these religious doctrines, the question of the entrenchment of abortion and prostitution prohibitions in the criminal law might also have regard to some other considerations as well. The impacts of the criminalisation of abortion and prostitution in respect of women are well known. In advanced democracies, the criminal law has progressively retreated from legislative frameworks that regulate abortion and prostitution and other interventions have been developed that seek to address these issues. The moral questions have largely been left in the private realm rather than being embodied in the criminal law as general propositions; although the debate continues particularly in the United States. The criminalisation of abortion and prostitution have been a factor in the infliction of great harm and suffering upon women and results in social dislocation, exposure to grave health and safety issues such as HIV/AIDS, drug use, and violence as well as life-threatening underground abortion clinics.
An East Timor Catholic priest has also questioned the government's condemnation of prostitution. Father Gusmao, the Director of the Baucau Diocese Commission for Peace and Reconciliation, was reported as stating that "it is the Court and not the Government that has the authority to say that prostitution is a crime since Government has no right to condemn it. Father Gusmão said that it is not right when Government morally condemns prostitution since the Government has not been able yet to reach that stage. This, he said, is due to the fact that the Ministry of Education itself has not managed to include sex education as part of the teaching curriculum. From the traditional and religious views of Timor-Leste, Father Gusmão argued that there has not been any support in favor of legalising the prostitution.(1)
The Episcopal Vicaris for Re-Evangelization of the Diocese of Dili, Fr Dominggos Soares, has been reported as stating that the Church considers prostitutes as criminals and hence legalising them means paving the way for crime. (2)
The issue was also raised in the Parliament. Joao Gonçalves (PSD) is reported to have raised the issue of prostitution in Parliament's plenary session on 25 October 2005. Gonçalves congratulated the media for their coverage of the issue, as he said that this is a very important moral issue, one which the government has not yet developed an effective strategy for. (3)
The Government has established a Permanent Working Group to discuss abortion. In their fourth meeting on Tuesday, members of the Permanent Working Group discussed the issue of abortion in this country. The Head of the Government delegation to the working group, set up as a result of an agreement signed between the Government and the Church last May, explained to journalists that during the meeting three speakers gave their opinion from the perspectives of justice, health and religion. "The objective is to get a deeper understanding about this subject", said Minister Antoninho Bianco. He said that in this meeting the group came to the conclusion that as abortion is a sensitive issue, they would still need to obtain input from other groups in society such as women's groups, and that they would soon be meeting with a group of approximately 20 women's groups to discuss the issue.(4)
The Government's policy on prostitution has been explained by the Minister of the Presidency for the Council of Ministers, Antoninho Bianco was quoted as saying that the Government has no intention to legalize prostitution because it is considered a crime. According to Bianco, aside from the Church’s views on the prostitution as an immoral practice, the new Penal Code of Timor-Leste, [which will soon enter into force], considers such activity as a crime. From the health aspect, Bianco also said, prostitution also can have a negative impact on people’s health. Bianco informed the media that to tackle the matter, there is a need to have the involvement of all components of society since such activity has been carried out secretly so far. Bianco also stressed that the matter has been discussed at the Permanent Working Group comprising Government representatives and representatives from all religious institutions, in which he acted as President.(5)
When developing future policy and law pertaining to abortion and prostitution in East Timor, consideration might also be given to the experiences in other societies of the criminlisation of both abortion and voluntary prostitution particularly their deleterious impacts on the health and safety of women, the consequences of the incarceration of mothers and the impacts on their children, and the stigmatisation of women who are convicted of the crimes of abortion and prostitution. There is an equally compelling moral and social question about the dignity and rights of a woman who, for example, is compelled under threat of the criminal law to endure a forced pregnancy resulting from rape and incest or one that occurs in the course of engaging in prostitution.
In developing legal policy on the issues of prostitution and abortion, consultation might also be sought with civil society particularly the strong network of women's NGO's such as Fokupers who have direct experience of the problems faced by contemporary East Timorese women, the legal community, the law enforcement agencies as well as international organisations dealing with women's issues.The Catholic Church's contribution to the debate of these issues is vital and critically important. However, the voice of the entire community must be heard on any matter touching the criminal law since it imposes punishments and the deprivation of liberty. The admixture of religious doctrine in State public policy and law requires the most vigilant scrutiny.
A transparent and participative mechanism that permits public scrutiny of the development of criminal law and policy can not be overemphasised as a general prerequisite to good public governance, informed and workable policy, and the enhancement of democratic principles.
(1) Suara Timor Loroasa'e 28 October 2005
(2) TVTL News 27 October 2005
(3) STL 26 October 2005
(4) Timor Post 20 October 2005
(5) Timor Post 22-24 October 2005
W Wright BA LLB
Sydney 18 May 2005
Revised 13 APRIL 2006
JOINT DECLARATION OF THE GOVERNMENT AND THE CATHOLOC BISHOPS OF EAST TIMOR
Taking into consideration that article 42 of the Constitution of the Democratic Republic of Timor-Leste defines that everyone is guaranteed the freedom to assemble and peacefully demonstrate;
Taking into consideration that the Constitution of the DRET defines that the objectives of the State is to defend and guarantee political democracy and participation of the people in the resolution of national problems;
Having observed the peaceful and orderly manner in which sentiments have been manifested that raise fundamental questions of governance worthy of consideration for the political orientation of the country;
Taking into consideration that the Constitution of the DRET guarantees freedom of conscience, of religion and cult, and establishes separation between religious denominations and the State;
Taking into account that the Constitution of the DRET attributes to the State the duty to promote cooperation with all different religious denominations;
Recognizing the competences the Constitution of the DRET attributes to the Government;
The Government and Bishops of the Catholic Church of East Timor, based on the due respect for the Constitution of the DRET, affirm jointly and solemnly:
1. Recognize the important contribution that religious values have in the construction of the national identity, in the construction of the nation, and in the socio- economic, cultural, and political level;
2. Recognize the fundamental role that moral and religious values play in the formation of the individual;
3. Recognize that these values should be incorporated in the educational mission entrusted to Schools;
4. Recognize that education should adequately correspond to the aspirations of all citizens, without any form of discrimination;
5. Recognize that the teaching of Religion must be included as a regular discipline in the curriculum, and consequently, taught during normal hours, and attendance subject to a decision at the time of enrollment and in accordance with the options freely expressed by their Parents - who are the irreplaceable partners in making concrete options that relate to the education of their children.
6. The Draft Penal Code should address the abortion issue in all its dimensions; abortion must be defined as a crime, except in cases where it is absolutely necessary to avoid the mother's death. The law must equally define the practice of voluntary prostitution as a crime, but should protect victims forced into prostitution. Likewise, as already envisaged in the Draft Penal Code, art. 155 and 156, the exploitation of children is defined as a crime.
7. To guarantee that there will not be threats or retaliation from the authorities against the demonstrators when they return to their place of residence, and to guarantee their physical security and social environment free of intimidation;
8. To establish a Permanent Working Group within a month from the date of signing this Joint Declaration. This Permanent Working Group will be composed of representatives from the Government, the Catholic Church and other religious denominations, and its mission is to accompany the concretization of the principles here established, to make recommendations that are relevant and opportune in all areas of its intervention and to provide better understanding of the existing problems and prevent future problems.
Dili, 7 May 2005
Dr. Mari Alkatiri D. Alberto Ricardo da Silva D. Basilio do Nascimento
Prime Minister Bishop of Dili Bishop of Baucau
In the presence of: Kay Rala Xanana Gusmao President of the Republic
Opt-out Clause Resolves Tension in East Timor Religious Instruction Returns to School Curriculum
A Catholic View on the Prime Minister's New Church-State Doctrine Frank Brennan
East Timor Govt agrees to Church demand on schools
Sword Gusmão: Prostitution Will Increase If Government Fails to Take Measures
Kirsty Sword Gusmão told media recently that, “should the Timor-Leste government not take measures soon the current levels of prostitution will increase. Sooner or later, Dili will be full of prostitutes”. Mrs. Gusmão made the above statement to the media in comments on PM Alkatiri’s recent statement to the National Parliament. “Often we say that we should follow our culture but, in the other areas, the government does give any importance to address such issues,” she added. Diario further reported that being another Timorese woman she is sad that prostitution is increasing rapidly in Timor-Leste. MP Joaquin do Santos also shared the argument of Mrs. Gusmão and argued that the culture forbids prostitution. (16/08/2005 Diario Tempo, Monday)
East Timor: End of church dispute allows debate on abortion, prostitution - PM
Lisbon, June 2 2005 (Lusa) - Prime Minister Mari Alkatiri said Thursday that the resolution last month of the dispute between his government and East Timor's powerful Catholic Church opens the door for debate in Timorese society on sensitive issues such as abortion and prostitution.
Speaking in Lisbon on his first official visit as prime minister to Portugal, Alkatiri recalled that the 17 days of church-backed demonstrations against the Dili government, originally over the issue of the teaching of religion in schools, had been ended after the signing of a joint declaration by the church and government.
Under this declaration, both sides affirmed that abortion should be defined as a crime, except to protect the mother's life, in Timor's draft penal code. Prostitution should also be a crime, the church and government agreed.
However, Alkatiri, making specific reference to "prostitution and abortion", said the agreement with the Catholic leadership "deals with issues affecting the conscience of each citizen and has the merit of opening debate to all society".
On the subject of religious education teaching in state schools, which sparked the unauthorized but peaceful protests in April, Alkatiri said "the subject exists but attendance is optional", as approved by the Dili cabinet last year "in a decision that was not well understood by the Catholic Church hierarchy".
Religion teachers are paid by the state, and "were never paid by the church", said Alkatiri, adding that the government pays "about USD 3 million annually to just under 2,000 teachers who give lessons in Catholic schools.
Anyone who alleged the government refused to pay religious education teachers in state schools "is either badly informed or had other intentions", he added.
The Draft Penal Code should address the abortion issue in all its dimensions; abortion must be defined as a crime, except in cases where it is absolutely necessary to avoid the mother's death. The law must equally define the practice of voluntary prostitution as a crime, but should protect victims forced into prostitution.
To guarantee that there will not be threats or retaliation from the authorities against the demonstrators when they return to their place of residence, and to guarantee their physical security and social environment free of intimidation;
Prostitution in Dili, East Timor on the East Timor Law and Justice Bulletin
The Catholic Church and Abortion in Timor-Leste
New abortion laws cause debate in East Timor
Alola Report on Abortion an exaggeration says Timor's Minister of Health
1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992