ADDRESS
BY
DR. CLÁUDIO DE JESUS XIMENES
ON THE OCCASION OF THE SWERING-IN CEREMONY OF
THE PRESIDENT OF THE COURT OF APPEAL
Your Excellency, President of the Democratic Republic of Timor-Leste,
Your Excellency, President of Parliament,
Your Excellency, the Minister of State and of the Presidency of the Council of Ministers,
Your Excellency the Special Representative of the Secretary-General of the United Nations,
Distinguished Representatives of the Diplomatic Corps,
Honourable
Members of Parliament and Members of Government,
Distinguished Presidents of the Political Parties,
Honourable
Representatives of the Church and of other Religious Faiths,
Distinguished Representatives of the Civil Society,
Your Excellency
the Prosecutor-General of the Republic,
Distinguished Justice Officers and Public Defenders,
Distinguished Jurists and Lawyers,
It is a matter of great honour for me to take on the functions of President of the highest instance of the Courts of the Democratic Republic of Timor-Leste, and to participate, particularly in my capacity as a Timorese citizen, in the establishment of the justice system of my country.
I am conscious that, by accepting these functions, I am undertaking a major responsibility.
As President
of the Court of Appeal, I take on the leadership of the highest instance
of the hierarchy of the Courts of the Democratic Republic of Timor-Leste
and of the Superior Council for the Judiciary and become responsible for
the positive and negative functioning of the Courts.
In accordance with the Constitution, the Courts are one of the four organs
of sovereignty of the Democratic Republic of Timor-Leste, together with
the President of the Republic, the National Parliament and the Government.
The Courts are organs of sovereignty with competencies to administer justice in the name of the people. They are independent and subject only to the Constitution and the law; and their decisions shall be binding and shall prevail over the decisions of any other authority.
The Court
of Appeal has jurisdiction throughout the national territory, is the
guarantor of the uniform enforcement of the law, decides, at the last
instance, all judicial issues and administers justice in matters of a
legal,
constitutional and electoral nature.
Jurisdiction lies exclusively with the judges. It is worth saying here that the Courts and the judges do not make law. They limit themselves to interpreting the laws approved by the Parliament and the Government. The function of the Courts and the judges is to "make justice". And, to this end, the Courts and the judges have the duty to interpret and to apply the law in force in the country, and have the duty to do so correctly, in accordance with the general principles of the law and the Constitution, and not according to occasional interests and conveniences, irrespective of their nature.
The Constitution also states that, in performing their functions, judges are independent and owe obedience only to the Constitution, and may not be held liable for their judgments and decisions, except in the circumstances provided for by law.
Furthermore, to ensure the independence of the Courts and of those exercising jurisdictional functions, the Constitution grants to an independent organ - the Superior Council for the Judiciary - the competence to appoint, assign, transfer, and promote the judges and has the power to discipline them. The Superior Council for the Judiciary is presided over by the President of the Court of Appeal.
As we all know, the Democratic Republic of Timor-Leste has been independent for one year and is in a phase of construction as a State. Therefore, it should be no surprise that its justice system is still far from operating adequately.
The lack of clarity and coherence in the laws in force in Timor-Leste makes it difficult for the Courts and the judges to interpret and apply the law to the cases they are to decide upon. It even makes it difficult to carry out the training of the judges and of other agents of justice.
The appointment of Timorese judges, hitherto done without any previous training, and the absence of an adequate and effective training system, make it so that the decisions of the courts are not always the most fair or the most correct from a juridical viewpoint, and, at times, they are more a source of conflict and distrust rather than settling conflicts and contributing to the pacification of the society.
In the exercise
of their functions, the Timorese judges have so far been called upon to
make decisions on more issues of a criminal rather than of any other nature.
But within a short period of time they will also be called upon to make
decisions on more issues of a civil nature, that are legally more complex,
and on issues of an administrative, fiscal, constitutional and electoral
nature.
The new laws being approved demand efforts of continuous up-dating on
the part of the judges.
For this reason, it has become more and more urgent to provide the Timorese judges with the necessary training so that they can better exercise their function of interpreting and applying the law to concrete cases.
Thus, the Protocol of Cooperation signed by the Ministers of Justice of Timor-Leste and of Portugal was very positive in terms of juridical and judicial training for Timorese human resources. This protocol of cooperation allows a significant number of Timorese judges to go to Portugal to undertake a one-year training programme at the Portuguese Centre for Judicial Studies.
The temporary departure of a significant number of judges to undertake training overseas may cause some delay in the decision of the processes that are currently in the Courts. However, it is preferable, in my opinion, for those resorting to Courts to endure this delay in decision-making rather than to receive unfair, illegal, and even arbitrary decisions on account of lack of adequate training on the part of the judges.
Also of practical utility is the mechanism provided for in section 111.2 of Law 08/2002, of 20 September, approved by the National Parliament, which allows the Superior Council for the Judiciary, in case of necessity, to appoint non-Timorese judges to the Timorese judiciary. This pragmatic statute allows it to ensure the normal functioning of the Courts during the period in which a significant number of judges are undergoing training overseas. And it also allows the Timorese judges to work side by side with more experienced judges and to learn from them how to interpret and apply the law and to make thorough and careful decisions, with sound judgement.
The Courts are the organs of sovereignty that have the responsibility of ensuring that the Democratic Republic of Timor-Leste will actually be a State based on the rule of law - in which everyone is subject to the law and in which everyone, from the President of the Republic to the Parliament, the Government, the departments of the various ministries, the District Administrators and Chiefs of Suco, to the common citizen, will find their rights and duties protected by the law.
Without
having judges that are minimally competent, no Courts would be capable
of ensuring the existence of the rule of law, which marks the difference
between the Timor-Leste of the past and the Timor-Leste of the present
and of the future for which many of its sons suffered and gave their lives.
The building of a judicial system is a collective task of all organs of
sovereignty of the Democratic Republic of Timor-Leste.
The constitutional mechanism for the composition of the Superior Council for the Judiciary, which is the organ designed to guarantee the independence of the Courts and the judges, translates the symbolic as well as the real co-responsibilisation of all organs of sovereignty for the positive and negative functioning of the Courts in Timor-Leste.
Your Excellency Mr. President of the Republic,
Your decision to swear-in the person who will exercise the functions of President of the Court of Appeal in the audience room of the Court of Appeal itself is a clear sign of commitment in the affirmation of the Courts as organs of sovereignty.
Your Excellency Mr. Speaker,
Honourable Members of Parliament,
Your Excellency the Prime Minister ad interim,
Honourable Members of the Government, particularly Your Excellency the Minister of Justice,
Your Excellency the Prosecutor-General of the Republic,
Your presence in this ceremony is indeed the expression of this institutional
solidarity.
Your Excellency the Special Representative of the Secretary-General,
Distinguished Members of the Diplomatic Corps,
Dear Colleagues Judges,
Distinguished Lawyers, Justice Officers,
Distinguished Members of UNMISET,
Ladies and Gentlemen,
Your presence in this act is a significant support to the judicial system of Timor-Leste.
For this reason, I can say without any doubt that the judges are not alone in the task of building the judicial system and the major justice system. This is not a task for one person or group of persons alone, but a task for the whole nation.
I thank you very much for your presence.
With the help of God and the guidance of those whom we have survived, we shall build a judicial system capable of guaranteeing that the Democratic Republic of Timor-Leste effectively becomes a State based on the rule of law.
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Dili, 12 May 2003