Untitled Document

OPENING REMARKS
BY
HIS EXCELLENCY
PRESIDENT KAY RALA XANANA GUSMÃO

On the occasion of the

CONSULTATION MEETING ON STRENGTHENING THE JUSTICE SECTOR IN TIMOR-LESTE

Dili, 5 June 2003

Excellency, Prime Minister,
Excellency, President of the Court of Appeal
Excellency, Ambassador Sharma, SRSG,
My friend, Sukehiro Hasegawa, UNDP Resident Representative and Deputy SRSG,
Members of Parliament,
Members of the Diplomatic Corps,
Ladies and Gentlemen,

I wish to extend my gratitude to the organisers for giving me this opportunity to discuss the Justice System in Timor-Leste with all of you here.

Timor-Leste is a new state. Tremendous challenges and institution building awaits our country on many fronts. To secure the democracy and the fundamental human rights we have so long fought for, we need to build a fair and effective system of justice.

There is always much to say about justice and democracy, but sometimes one has to stop, take stock of the situation and find out where one wants to go, what are the mistakes and how to fill the gap. This, I believe is the purpose of this seminar.

Today, I would like to share some thoughts with you on a holistic understanding of Justice, in the Timorese society and in the State building context.

One must consider two distinctive areas when referring to Justice. The first one relates to the application of justice for common crimes within society and, the second area relates to law enforcement and the guarantee of primacy of the Rule of Law.

If we were to look at the precarious existing statistics, we begin to realize the quality of the current available data; it only refers to sentenced cases or those awaiting sentencing by the courts, leaving behind every other case raised during the past three years; the latter would give us a clearer vision on crime in Timor-Leste.

Nonetheless, I am of the opinion that the present statistic elements may be a more or less faithful indicator of the crime rate in Timor-Leste.
Is Timorese society a society of murderers, one that harbours offenders, a society with a common behaviour of mistreatment, a society of thieves?

Is violence within our society a question of culture or heritage? Domestic violence derives from traditional gender concepts and will only be challenged on the one hand, with civic education and, on the other, with a greater economic emancipation of women.

Social violence is a legacy of a prolonged period of repression of freedom where adolescents were brought up in a climate of spontaneous violent reactions as acts of self-defence or as statements of non-submission. At present, it is also the outcome of a situation of social and economic insecurity.

The current 332 prisoners throughout the three prisons in the country (of which only 37% have been sentenced and 63% are pending; 21% of the latter are in an irregular detention situation) are obviously not an indicator of a low crime rate. During May 2003, in Dili alone, the number of reported occurrences was 164, and 163 in April 2003, that is, on average, 5.35/day.

In May 2003, the categories of occurrences were as follows:
- 39% violence/assault
- 13% burglary
- 11% domestic violence
- 8% intimidation/threats
- 5% property damage
- 2% throwing stones
- 1% attempted murder
- 1% rape/attempted rape
- 1% sexual assault

The distribution of crimes sentenced to imprisonment is as follows:
- 39% murder
- 22% violence/assault
- 23% domestic violence/mistreatment
- 16% robbery

Murder cases have been classified into three categories. The first one relates to the few cases of violence during September 1999; the second is in relation to some cases of violence amongst the youth, which have led to murder because of aggravation of disputes and, the third one, representing the majority of homicide cases, as the outcome of disputes within the community or for traditional ethic reasons and, in many more cases, arising from the lack of dialogue between parties or the lack of third party mediators.

Bearing this in mind, it is easier to understand the age breakdown of the current prisoners:
- 2% under aged
- 49% between 18 and 29 years old
- 41% between 30 and 49 years old
- 8% over 50 years old

I met some of the older prisoners recently and realised they are peasants sentenced for domestic violence or manslaughter resulting from domestic violence.

An analysis of the type of crimes reveals that violence, assaults and robberies are due to the economic situation which the Timorese society is currently facing and match the common social disease found wherever there is high unemployment.

What does this have to do with Justice, one may ask? There are four elements to be included in the answer to this question. The first one being that the inability of the judicial system in processing cases is notorious, for 63% of prisoners await trial and, worse of all, for 'petty offences'.

The second suggests that social empowerment, through a local government with legitimate authority, may solve many cases within the community through mediation, persuasion or preventive measures; this would reduce the possibility of aggravating disputes or conflicts that may result in homicide. It is obvious that not every case should be solved by traditional means but, in others, the worse maybe avoided.

The third element to be taken into account relates to the need for a consistent job creation and minimum wage policy that may lead to a reduction in the crime rate in Timor-Leste and, help avoid dragging jobless youths to organised crime, which fortunately, is still at an amateur and circumstantial level.

Lastly, it is important to emphasize that we do not need an extended, large judicial system omnipresent throughout the country.

What we mean by this is that Timor-Leste is a small country, with a low crime rate, which could be served by a relatively small but effective judiciary, supported by an efficient court administration.

Ladies and Gentlemen,

The UN Transitional Administration created four District Courts, appointed East Timorese judges, prosecutors and public defenders and put in place a transitional legal system. Consequently, many of the key court actors entered into an emergency court system with minimal training, little experience, and the effective absence of an operational court administration.

A functioning court administration is part of the institutional basis of the fundamental right to a fair trial before a competent, independent, and impartial tribunal. Particular elements of this right are currently affected by the lack of an effective administration. The right to a fair trial is undermined by access problems, including access to information about the court proceedings, frequent postponements and huge delays, and a case back long stemming from as far back as mid-2001.

Moreover, there is no uniformity of procedures nor reliable reporting and filing systems in place; reliable statistics can therefore not be obtained.

Neither the police nor the judicial system have yet put fully effective reporting systems and reliable case filing systems in place, and statistics generation and analysis is difficult.

Ladies and Gentlemen,

The other area, which I referred to in the beginning, was the application of law to guarantee primacy of the Rule of Law.

Lack of experience, some lack of knowledge of the country's laws and inadequate resources to access non-domestic laws, in addition to a prolonged dependency on the still valid UNTAET Regulations, and the need for standardised procedures, has dictated an ineffective judiciary and also provoked a feeling of uneasiness within society as a result of cases being resolved too swiftly or because of cases warranting greater deliberation.

This current state of things is causing great concern to us given that a judicial system which does not function on a professional ethical basis, on the basis of honesty, impartiality and independence, and can destroy all the efforts of building the Timorese State.

Tales of corruption are starting to trickle in. This is an early warning sign! No systems in place results in confusion, lack of clarity and accountability. This again creates perfect conditions for corruption.

Corruption can be many things and does not need to involve money.

We know that in one year's time UNMISET ends, which will entail that much of the support provided today to the Timorese Justice System will not be available anymore. We do not yet know the full extent of this situation, but we know that we have to plan without UNMISET.

All of these issues emphasize the need for consorted efforts to deal with the existing situation. The judicial system must improve effectiveness and increase the capacity by setting clear targets, put systems in place, train judges, prosecutors, and public defenders in applicable law, legal procedures, notifications of trial and filing.

Our judiciary must be able to uphold human rights in order to earn the public confidence necessary for a society based on rule of law. To uphold democracy and human rights we need a strong and independent judiciary.

So what plans are made and what actions are taken to ensure progress in the sector at both short term and long term?

Closer coordination between the key actors in the sector to improve this situation is necessary, also in terms of resource mobilization and training and education. Strategic planning is necessary and a comprehensive approach with key interventions at different levels to improve the justice situation in the sector should be in place. The teaching of law, and education of all the relevant role players, in the nature of international law and its interaction with local law, must start urgently, if we are to ensure that the promising constitutional provisions do not remain a dead letter.

The recently established Court of Appeal will also be responsible for the much needed judiciary scrutiny functions that will improve the level of our public prosecutors and lawyers.

Civil society is also imperative in upholding a democratic society based on the rule of law. Some NGOs are already doing an important job in terms of overseeing the justice sector in Timor-Leste, and providing advice for improvements but they still need more engagement and better guidance. Their capacity should also be strengthened with the support of our partners so that the state-society partnerships can continue to evolve and improve, to the benefit of the justice sector.

The courts, civil society and the public service are the institutions, which need to uphold human rights so that this country can have peace and enjoy stability and a predictable environment for investment and economic growth.

Keeping the sector independent and not an easy target for politics and corruption, while developing professional standards will remain the main challenge.

We have been faced with a rare opportunity to make the most of the 'clean slate' situation in 1999, by trying to establish best practices in the justice system. We need to seize what remains of this opportunity before problems become entrenched and then all the more difficult to change.

The judicial system will be the foundation that will sustain the emerging democracy in Timor-Leste.

So it is time to seriously address the issue of building capacity and putting in place accountable systems to deliver impartial and independent justice at professional standards to the people.

I look forward to seeing the results from this consultation meeting in this regard. This time we will listen to the actors in the Justice sector themselves, on how they plan to deal with the problems. And then I hope that the discussions, with the support of our partners, can lead us to put in place a foundation for a clear measurable strategy so that we can meet again in one year's time, before UNMISET leaves, to report progress and not the same situation … preferably, with reliable statistics at hand.

Ladies and gentlemen,
Allow me to cover an additional theme of Justice - the Prison system.

Imprisonment is an act by which individual freedoms of a person are taken away, as punishment for whatever crime committed. Imprisonment can be a system of pure and simple reclusion but it can also offer an opportunity for the rehabilitation of people.

When the prison system is merely organized around daily activities/work such as visits, physical exercises, religious and moral assistance, and maybe, one or another professional activity, often without continuity or most cannot access, prisoners suffer from psychological depression because they spend most of their time thinking of their lives, their families or their lack of future.

In addition to this, the situation is worsened with the fact that current maintenance expenses are, or have to be, supported by the State.

We know that in terms of human rights, there is a quasi-demand to ask where should a prison be situated. In urban centers or outside of these?

I visited the country's prisons more than once and gained a feeling that they are not only misplaced but also are conceived exclusively to maintain prisoners as recluses.

Most of the prisoners never enjoyed family visits for their families cannot afford them. The younger prisoners are totally inactive and unproductive. The older prisoners mirror their concern for their families' living conditions, including their daily diet and health conditions.

In Ermera, I noticed that in the tiny front yard, prisoners try to grow a vegetable patch and though not abundant their produce is bought by the guards themselves who, in an elevated spirit of solidarity, also assist them by channeling the produce to local markets.

Profit from the sales are saved or used to purchase basic commodities or, even, to assist kin of fellow prisoners.

Several attempts were made to turn the prison into a centre for individual rehabilitation and, once the sentenced was served, the prisoner could become of use to the community

In Timor-Leste it is necessary that we take on this path. However, under the current difficulties in building the country, the State will not be able to bear any costs other than those regarding logistics and the maintenance of the prisons.

In my opinion, we should adopt a system whereby prisons for those who were sentenced be located in places with better conditions to undertake productive activities, either in the agricultural field or other vocational training areas.

On the first suggestion, it is easy to understand that agricultural production - including, rice, beans, corn and other vegetables, as well as, breeding poultry or pigs - can help overcome problems with daily dietary requirements and alleviate the State from such expenses and, in addition, contribute to assist families most in need; furthermore, if there is surplus of production, the produce may be sold and the profit channeled to the maintenance and improvement of prisons.

The issue at stake is not of envisaging family visits as a priority; the real priority lies in the question of how can the prisoners continue to assist their own families in solving specific and often difficult problems, whilst in prison.

The number of women in prison is less than ten and most of the prisoners are married and with a high number of children.

If we are to envisage the building of more prisons, I would suggest that we bear this in mind, that prisons are built in urban centers as detention centers for those awaiting trial.

If we do not adopt a prison system which enables prisoners to maintain their active and specific family links, despite the restrictions on their individual freedoms, we will be limiting the system to mere reclusion standards were prisoners will retain their anger for what they deem to be a 'social injustice' and not having the same opportunities as other individuals.

If we do not adopt a prison system to enable the improvement of individuals through their work and acquire self-sustaining skills, we will limit ourselves to complaints on lack of funding to maintain the precarious conditions of our prisons.

Thank you all very much.

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