Yayasan HAK Briefing Paper
24 July 2001
SERIOUS CONCERNS REGARDING THE INDEPENDENCE OF THE JUDICIARY
under United Nations Transitional Administration in East Timor
In October 1999, the United Nations Security Council responded to "the
grave humanitarian situation resulting from violence in East Timor"
by
establishing the United Nations Transitional Administration in East Timor
(UNTAET) and empowered UNTAET to exercise all legislative and executive
authority, including the administration of justice. Such power was
conferred on the proviso that UNTAET consult and co-operate closely with
the East Timorese people to effectively carry out its mandate. UNTAET
subsequently promulgated Regulation 1999/1 which stated that the power
vested in UNTAET by the Security Council Resolution 1272 (1999) would
be
exercised by the Transitional Administrator. It stated further than "in
exercising these functions the Transitional Administrator shall consult
and
cooperate closely with representatives of the East Timorese people".
An all-Timorese National Council was established by the Transitional
Administrator, Mr. Sergio Vieira de Mello, to exercise legislative
responsibilities and functioned as the only institution through which
consultation with representative of the East Timorese people, required
by
the Security Council mandate, was ensured.
UNTAET put forward a series of UNTAET drafted regulations to the National
Council which sought to guarantee that the Cabinet Member for Justice
would
have extensive powers regarding every sector in the administration of
justice. The regulatory scheme sought to appoint the Cabinet Member for
Justice to the Judicial Commission which selects, monitors and disciplines
both judges and prosecutors. Additionally, the Cabinet Member was to be
granted the power to re-assign any judge to any particular position in
the
Department of Justice for an unspecified period of time, which only
temporarily suspends the judge's judicial functions. Finally, the Cabinet
Member was to have direct control over the provision of legal aid to those
requiring assistance to exercise their right of legal representation.
The effect of these regulations as a whole would be to seriously endanger
the independence of the judiciary in East Timor and undermine the capacity
of national institutions to perform the checks and balances necessary
for a
democratic society. An independent judiciary is indispensable to the right
to a fair and public hearing by a competent, independent and impartial
tribunal established by law as proclaimed by the Universal Declaration
of
Human Rights (Art. 10) and the ICCPR (Art 14(1)).
On 13 July 2001, the National Council endorsed a series of amendments
to
the aforementioned UNTAET drafted regulations to protect the independence
of the judiciary, to observe the separation of powers in the administration
of justice and finally to ensure compliance with international human rights
law.
Subsequent to the endorsement of the amendments, the Cabinet of the
Transitional Administration has recommended to the Transitional
Administrator to promulgate the relevant UNTAET justice regulations without
incorporating these critical amendments endorsed by the National Council.
Mr. de Mello has already acted on the advice of Cabinet regarding one
of
the regulations in question, and promulgated the regulation which allows
the Cabinet Member for Justice to temporarily re-assign a judge to any
position in the Department of Justice. The promulgation of this regulation
contravenes the separation of powers doctrine by allowing the judiciary
to
exercise executive functions of government. The separation of powers
doctrine requires that the judiciary be limited to the exercise of judicial
function to ensure that judges are impartial and independent in deciding
cases before them on the basis of fact and in accordance with the law.
The
promulgation of this regulation not only contravenes separation of powers
but also violates Principle 1, 2 and 4 of the UN Basic Principles on the
Independence of the Judiciary.
However, Mr. de Mello has recognised that we have raised valid concerns
in
relation to legalising the contravention of the separation of powers.
He
has conveyed to us that he is willing to revisit the promulgated regulation
with us. He has also delayed on the promulgation of other regulations
concerning the independence of the judiciary on the basis of our concerns.
Our additional concerns are as follows:
1. The Cabinet has approved an UNTAET draft regulation to appoint the
Cabinet Member for Justice, the General Prosecutor and the President of
the
Court of Appeal to the body which selects and disciplines both judges
and
prosecutors.
The National Council endorsed the rejection of such appointments on the
basis that it violated Principle 10 of the UN Basic Principles on the
Independence of the Judiciary and Guideline 2(a) of the Guidelines of
the
Role of Prosecutors which require any method of judicial and prosecutorial
selection to safeguard against appointment for improper motives.
Furthermore, the requirement for the President of the Court Appeal and
the
General Prosector to be impartial in the exercising of their respective
judicial functions is incompatible with the appointment to the Transitional
Judicial Service Commission. If the draft regulation is promulgated
without incorporating the amendment of the National Council, it will not
only disregard international human rights law, but also create an
institutional bias between the courts and Public Prosecution Service.
When
the selection process for key judicial appointments contains conflicts
of
interest, the underpinning for those appointed to the judiciary to act
independent and impartiality is seriously weakened. This is not a robust
foundation on which to be building a judiciary capable of protecting the
citizen from the powers of the state.
2. Cabinet has also approved an UNTAET draft regulation which grants
the
Cabinet Member for Justice direct control regarding the provision of legal
aid.
The National Council endorsed an amendment providing legal aid was to
be
administered by a Legal Aid Commission, operating as an independent
statutory body. Such an amendment removed direct control by the Cabinet
Member for Justice in the provision of legal aid, while retaining strict
financial accountability. The institutional separation of legal aid
provision is required so that citizens can enjoy the fulfilment of their
right to legal representation, free from institutional bias, particularly
in cases concerning the government. It would also demonstrate to the
community that the government is committed to the impartial protection
of
citizen's rights.
To end, we should emphasis that in order for the transition to be a
meaningful one, the foundations must be laid to ensure that national
democratic institutions can perform the checks and balances required for
any healthy and vigorous democracy. The establishment of such local
institutions capable of upholding democratic values is particularly
critical for East Timor to redress the oppression experienced under decades
of colonial rule. Securing the basis for an independent judiciary is
indispensable in this a historical context. It is only then that the East
Timorese can start to overcome a past legacy of impunity and cultivate
a
culture of the rule of law where the people can trust and rely on the
judiciary for the full protection and realisation of their rights.
In light of the importance and urgency of this matter we would urge you
to
raise your concern on this matter with the Transitional Administrator
and
encourage his administration to act in accordance with international human
rights law and democratic principles.
Yours sincerely
Aniceto Guterres Lopes
Director