TiMOR-Leste and Development Partners meeting
04 JUNE 2003
JSMP
BACKGROUND Paper on The Justice Sector
Justice System
General Comments
The appointment of Judge Claudio de Jesus Ximenes as President of East Timor´s Court of Appeal and of the Superior Council of the Judiciary, the re-establishment of the Court of Appeal and the establishment of the Superior Council of the Judiciary to ensure the independence of the judiciary and oversee the operation of the fourth arm of the State are each important steps towards the establishment of a mature, fully-developed and effective judicial system in East Timor.
The last 12 months have also seen a number of issues emerge in this sector which have been of significant concern to the NGO community. These include:(1) the non-operation of the Court of Appeal which was last convened in November 2001, (2) uncertainty regarding the future of the UN-sponsored Serious Crimes Unit, the Special Panel for Serious Crimes; and steps to be taken by the International Community and Timor-Leste Government post withdrawal of the UNMISET Mission in June 2004 to ensure that those responsible for serious human rights violations are brought to justice, (3) ongoing delay and problems in establishing an effective system of land and property title, and (4) problems and challenges to the effective operation of the General Division of the District Court.
The operation of each of these sectors – and particularly the continued operation of the Special Panel for Serious Crimes post May 2004 -remain key areas of focus for Justice Sector NGOs in East Timor. Equally, the General Division of the District Court remains a particular area of focus for JSMP, as the General Division of the Court is the work-horse of the criminal and civil court system, and is crucial to delivering certainty, equity and justice to commercial enterprise and ordinary East Timorese people. JSMP considers that the development of this sector should be an area of key focus, monitoring and scrutiny by both NGO and Government actors.
More detailed comments regarding developments and emerging issues in each of these sectors follow:
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The Court of Appeal –
The appointment and swearing-in of Judge Claudio de Jesus Ximenes as President of East Timor´s Court of Appeal is a welcome development. It is expected the Appeal Court will resume sitting early next month. The Court last sat in November 2001, and as a consequence there is a significant backlog of appeals (approximately 70) – both civil and criminal to be determined. This is of particular concern in the criminal sector due to the large number of detainees who remain in custody despite appeal against their conviction and/or sentence. A further concern is that the procedure for listing of appeals is unclear. JSMP´s understanding is that the present plan is to list appeals based solely upon the date on which the appeal was lodged (ie. oldest cases will be dealt with first) and making no distinction between whether the case is criminal or civil, and whether the accused is in detention.
JSMP is of the view that peoples´right to liberty is paramount, and accordingly, it imperative that priority should be given to listing appeals instituted by those in detention, rather than civil matters. JSMP is also concerned that there may presently be inadequate staff and resources to effectively administer the expected workload of this institution.
Special Panels for Serious Crimes–
The departure of Judge Benfeito Mosso Ramos (Cape Verde) in April 2003 meant that the Special Panel for Serious Crimes was unable to convene a full panel of the Court and conduct hearings. According to UNTAET Regulations the Special Panels must be comprised of two international judges and one East Timorese judge, and until recently, Judge Sylver Ntukamazina (Burundi) was the sole remaining international judge.
This problem has now been remedied with the recent swearing in of three new international judges to the Panel, these being: Judge Francisco Florit (Italy), Judge Siegfried Blunk (Germany) and Judge Dora Martins de Morais (Brazil). The departure of Judge Benfeito has caused other problems, however, in that a number of trials in which he was involved will now need to be reallocated and/or re-started. Some such cases had been already been running for up to two years.
The necessity to restart these trials is of concern for four reasons.
1. It denies the accused the opportunity of a fair and expeditious trial,
2. It is unclear what law and procedures will govern the conduct of a new trial (particularly where it comes to inconsistencies in evidence before the two hearings),
3. It demonstrates poor case management, and inadequate use of the court’s resources, and .
4. It demonstrates poor planning on the part of the East Timorese Government and UNTAET/UNMISET in recruiting new international judges for the Court.
The General Division of the District Court –
The District Court system continues to suffer from several inherent problems. These include lack of resources, inefficiencient planning and case management, and inexperienced Judges, Prosecutors and Public Defenders. The District Courts in Oecussi and Baucau are barely functioning (with the Prosecutor in Oecussi yet to issue an indictment), whilst the Suai District Court is being convened in Dili due to logistical and administrative problems. These include inadequate detention facilities in Suai, and the fact that a Public Defender for the Suai District Court has yet to be appointed.
Concerns include continuing delays and failure to follow correct procedures on pre-trial detention, conditional release applications and pleas of guilty, misapplication of the rules of evidence, and continued use by the courts of Indonesian rules and procedures, rather than the UNTAET Transitional Rules of Criminal Procedure that should be applied. Prosecutors compromise their independence by engaging in private mediations outside their mandate. Particular concerns include mediation of inappropriate subject matter, such as criminal cases and particularly domestic or gender based violence. In addition, Judges fail to apply the proper considerations in sentencing offenders, and Public Defenders are generally ill-prepared and passive in the conduct of their client´s defence. International mentors have also been ill-equipped to transfer skills to their Timorese counterparts due to language barriers and/or differences in legal systems.
A further matter is the proposal, pursuant to a Protocol of Cooperation between the Governments of Timor-Leste and of Portugal, to send eight District Court Judges and four Prosecutors to Portugal for 12 months´ intensive training in Portugese language and law and procedure. The program is expected to commence at the Portugese Centre for Judicial Training in July this year. It is further proposed that the East Timorese participants should be replaced by Portugese counterparts on a 12 month secondment. Whilst the full details of this program have not been publicly released, JSMP understands that it has been mooted that: (a) during the course of this 12 months, the District Courts in Suai, Baucau and Oecussi should hold their proceedings in Dili, rather than in the district centres, and (b) that the District Courts should deal only with criminal matters – with civil cases being postponed pending return of the East Timorese secondees from Portugal. This proposal raises a number of serious concerns, including: language barriers between Judges and parties appearing before the courts, most of whom do not speak Portugese, logistic and administrative problems in conducting cases in Dili, and barriers to justice for those who wish to have civil claims dealt with fairly and expeditiously.
JSMP has recently conducted a 4 week monitoring program of the Dili District Court and has released a public report (also distributed to court actors the Government and the legal sector) highlighting these concerns and ongoing problems. JSMP will continue to monitor civil and criminal matters before each of the four District Courts over the next 3 months.
New Legislation
The East Timor Government has drafted several important pieces of legislation since Independence on 20 May 2002. It is of concern, however, that many of these instruments are poorly drafted and suffer both from internal inconsistencies or contradictions and/or contravene various international human rights instruments which East Timor has purported to ratify.[1]
Proposed Amnesty Law –
The Amnesty Bill submitted to Parliament by President Xanana Gusmao on East Timor’s Independence in May last year has been the subject of widespread comment by the NGO community. A number of concerns were identified concerning what appeared to be a hastily-prepared Bill, which potentially would have granted amnesty for a wide range of serious human rights violations committed during the Indonesian occupation and the violence surrounding the Popular Consultation in 1999.
The Bill was debated by Parliament but not passed – with further deliberation being postponed to a later date. JSMP understands that the Bill has recently been reintroduced to Parliament for further debate. The NGO community maintains serious concerns about this development.
Immigration and Asylum Law –
The Immigration and Asylum Bill passed by the National Parliament in May this year has been the subject of serious concern to the NGO community in East Timor. It has also been the subject of considerable domestic comment. There are a number of problems with the law as it has been passed, including, but not limited to:
· Limitation on freedom of speech, assembly and association directed at ¨Foreigners¨ (non citizens) which contravene both civil liberties protected by the East Timorese Constitution and also international covenants on human rights. These include the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR).
· Prohibition upon Foreigners from engaging in the administration and management of corporations, unions and other business ventures; together with the requirement on Foreigners and tourists to demonstrate substantial assets. These, together with the unpredictability of visa renewals will discourage investors and tourists from coming to East Timor; thereby hurting the country’s ability to develop its economy and provide jobs for its citizens..
· Power of the government to expel Foreigners and asylum seekers for a variety of reasons. Particularly, the failure to provide a fair and transparent process of investigation and assessment of deportation proceedings and asylum claims, unrealistic time-frames, a systematic denial of procedural fairness in the entitlement of such persons to challenge or appeal deportation proceedings and refugee status determinations. These contravene both the East Timorese Constitution and the obligations imposed upon States by international refugee conventions.
Provedor’s Law –
The proposal to establish an Office of the Human Rights Provedor (Provedor de Diretos Humanos e Justica) is an important development, and one which is welcomed by the NGO community. The legislation, modelled upon Ombudsmens laws in other jurisdictions, is well-drafted, internally consistent, and provides broad-reaching powers to the Provedor to investigate, make determinations, issue recommendations, and to report to Parliament upon complaints against Government officials, agencies and instrumentalities. The legislation has the potential to safeguard the community and significantly benefit the civil rights of East Timorese citizens.
In order to fully and effectively fulfil its mandate, however, the Office requires a strong office bearer who is capable and willing to vigorously investigate complaints, including complaints against senior officials and Parliamentarians, and to be truly independent in the determination of such complaints and the issuance of recommendations.
The Office will also require significant funding, and the provision of sufficiently trained and experienced staff and resources to ensure that it is able to properly fulfil its mandate. These are matters which will require further monitoring by the NGO community – particularly during the Office of the Provedor’s start-up phase.
Other Legislation –
It is pleasing to see that the Government is developing new legislation to support strengthening of good governance in the Justice Sector in accordance with the ¨Transition Support Program II Action Matrix¨. However, there are significant concerns regarding some of the legislation passed to date.
This includes the Judicial Magistrates Law which, whilst laying the foundation for the appointment, promotion, discipline and dismissal of judges, contains a number of deficiencies. These include its focus on discipline and censure of judges in the absence of a detailed code of ethics against which their conduct might be judged. Additionally, insufficient provisions outlining the circumstances in which a judge may be subject to discipline or dismissal, and a lack of clarity on procedures to be followed, place the independence of the judiciary in a vulnerable position. Finally, the law assumes an already fully staffed and resourced legal system with a large number of senior judicial personnel which does not reflect the present reality in East Timor.
Other legislation, presently being drafted and/or in the process of being submitted to Parliament includes the Public Defenders Office (PDO) Law and Ministry of Justice (MOJ) Organic Law. - each of which will have a significant impact upon the future operation and development of the justice system in East Timor.
JSMP and other justice sector NGOs are currently in the process of obtaining copies of the drafts for this new legislation. It is important that, in drafting such legislation, the Government engages in broad consultation, both internally and with civil society. JSMP looks forward to the opportunity to provide relevant comment and input towards the development of these laws.
Special Areas of Focus
International Justice –
The departure of Ms Siri Frigaard as Deputy General Prosecutor for Serious Crimes, reduction in the number of Prosecutors within the Serious Crimes Unit (SCU), continued failings by the Ad Hoc Court in Jakarta; and mixed messages from the President of the Republic and East Timor Government, have re-ignited concern amongst the NGO community about the future of Serious Crimes investigations and prosecution of those responsible for the human rights abuses perpetrated in East Timor in 1999 following expiry of the UNMISET mission in May 2004.
It is of particular concern that the United Nations and international community at large continue to ignore calls for the establishment of an International Tribunal for East Timor. The East Timorese President and Government continue to advocate reconciliation with Indonesia whilst maintaining that responsibility for the investigation and prosecution of such offences lies properly within the provence of the UN and international community, rather than themselves.
JSMP considers that, at a minimum, it is the joint responsibility of the United Nations and the East Timorese Government to ensure that appropriate steps are taken to fund the continued operation of the Serious Crimes Unit and Special Panel for Serious Crimes post May 2004. Further, to maintain international pressure upon Indonesia to deliver those indicted for serious crimes to the Special Panel for trial in order to preserve the integrity of the international human rights system and deliver justice to those East Timorese victims of the violence of 1999 and their families.
Reception. Truth and Reconciliation Commission (CAVR) –
The Reception, Truth and Reconciliation Commission (Commissão de Acolhimento, Verdade e Reconciliação) which was established in January 2002 has made an important contribution over the last 12 months towards bringing justice and closure to many hundreds of ordinary people in the East Timorese Community. It has done this through conduct of its core activities, being: reintegration of offenders within their communities through its conduct of truth-seeking and community reconciliation hearings throughout East Timor. The Commission has also conducted several thematic sessions (including sessions on victims of torture and the experiences of women) which have been well-attended, broadcast nationally and widely-reported by the domestic and international media.
JSMP supports the important and highly valued role played by the CAVR in this regard, and applauds the decision of the Government to extend the CAVR´s mandate until October 2004.
Domestic Violence –
Domestic violence and violence against women and children remain significant matters of concern to the development of the justice system. Domestic violence accounts for approximately 40% of all cases before the Criminal Division of the District Court system – yet the justice system continues to undervalue the seriousness of such offences. Local communities, police investigators and prosecutors continue to treat many such offences inappropriately by referring them to mediation for resolution. Further concerns arise as to a substantial number of cases which are dealt with by the traditional justice system with reportedly highly varied, and, for the victim, unsatisfactory outcomes. Inadequate community education, together with a lack of support and counselling services for victims of domestic violence continue to mean that such offences often go unreported and/or inadequately managed.
The Office for Promotion of Equality is undertaking broad consultation in relation to proposed domestic violence legislation. JSMP commends the Office on this consultation process.
The Prison System –
Whilst there have been significant improvements during the last 12 months in the standard and conditions of detention in East Timor´s prisons, some problems remain. Notably, these include continued delay in review of prison detention orders by the courts, and delays by prison authorities in the execution of court orders for release or conditional release of prisoners. Whilst there have been some initiatives in this area, lack of access by prisoners to legal advice concerning their legal rights and also to advice and counselling from their defence representatives remain ongoing concerns.
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[1] Note
that there is some doubt that the Government has in fact properly ratified
many of those international conventions, including the International Covenant
on Civil and Political Rights (ICCPR), as required by the East Timorese
Constitution.