TIMOR: Legal System Faces Chaos
East Timor's
most senior judge has ruled the new nation's legal system
should be based on Portuguese law, not Indonesian law. The controversial
statement was made during his verdict on an appeal of a Timorese militiaman
convicted on involvement in murders and a massacre during the 1999 vote
for
independence,listen |
Presenter/Interviewer: Anita Barraud
Speakers:
Dr Tim Lindsay, Director of the Asian Law Centre and Associate
Professor of Law at Melbourne University; Claudio Ximenes,East Timor's
only
Supreme Court Judge; Dionisio Babu Soares, from East Timor's Jurist
Association; Longuinhos Monteiro, Prosecutor General
BARRAUD:
When the most senior judge in the land handed down a verdict,
contrary to common thinking, many associated with the legal system in
East
Timor reeled with shock. Dr Tim Lindsay is Associate Professor at Melbourne
University and Director of the Asian Law Centre.
LINDSAY:
It's a nightmare, it means that there were decisions made pursuant
to a law that didn't apply by institutions taking their authority from
legal provisions that were not relevant. In other words the consequences
directly are completely chaotic for East Timor.
BARRAUD:
East Timor's only Supreme Court Judge Claudio Ximenes, who was
trained in Portugal, says the common interpretation of the United Nations
drafted legal system, adopted after independence is wrong. The UN did
not
recognise Indonesian sovereignty, referring to East Timor as a non
autonomous Portuguese colony - therefore it follows Portuguese - not
Indonesian law should be applied. So far all legal decisions, sentences
and
convictions made since 1999 have been based largely on Indonesian law.
Speaking from a busy restaurant during Dili's lunchhour, Judge Ximenes
says
he cannot comment on the case or his verdict, but stressed his decision
was
based on considered legal argument.
XIMENES:
Well the decision is taken on the legal arguments of
interpretation and not on a political argument. So I've not taken a
decision just because I have found out that the Portuguese law is better
or
more developed than Indonesian law or anything else.
LINDSAY:
I have to say that I think Justice Ximenes's reasoning is probably
right. You can't have your cake and eat it, if you believe that Indonesia
illegally occupied East Timor, then you can't have its law applying.
BARRAUD:
Already coping with log-jammed courts, language difficulties and
barely adequate resources, the judges' decision could overturn all current
and previous legal decisions and sentences. Dr Lindsay says Judge Ximenes
has perceived a lack of clarity in the laws drafted by the United Nations
Transitional Authority in East Timor, and in the constitution.
LINDSAY:
The constitution and the UNTAET regulation both say simply that
the laws that existed in East Timor at the time they came into effect
will
continue to apply until set aside. It's as simple as that. But neither
of
them say what those laws were, and this has left the East Timorese
parliament and the judiciary with a problem. What law applied in East
Timor
in '99 and in 2002 when UNTAET regulations came in and when the
constitution came in.
BARRAUD:
The Judge's controversial decision related to a militiaman
originally convicted of murders including the killing of a leading East
Timorese activist and involvement in a massacre at a church in Liquica
in 1999.
The prosecution
was appealing against the murder conviction arguing the
accused, Amando Dos Santos, should have been charged with murder as a
crime
against humanity. A number of other cases have since also ruled in favour
of using the Portuguese laws. Dionisio Babu Soares, from East Timor's
Jurist Association says there are strong arguments for using Indonesian
laws despite its history of repression in East Timor.
SOARES:
Something that Judge Ximenes forgot was that Indonesia and Portugal
had an agreement on the 5th of May 1999 where both countries actually
agreed to handover their claim of East Timor to the United Nations. And
if
you look at 5th of May agreement, Article 11, it says that Indonesian
laws
in force upon the date of entry to first of this agreement.
BARRAUD:
Mr Soares says this agreement to abide by Indonesian law while
East Timor remained a special autonomous region has helped form the basis
for the UNTAET law and the constitution. He admits the draft law does
not
clarify which law East Timor should follow - but what IS crystal clear
are
the Indonesian laws which should NOT be used, and they include specific
laws relating to human rights, sentencing - including capital punishment,
regulations on social organisations and security laws. He believes the
fact
that the exceptions were so carefully laid out implies that the laws of
common choice would be - Indonesian. But Mr Soares is more concerned about
the social and political implications of Judge Ximenes's ruling.
SOARES:
People are afraid that their rights, their claims to land and to
properties and everything that actually came under Indonesia law will
not
be recognised by the current government.
XIMENES:
When we are trying to deal with this ... and even in a country
where the legal system is established, there is always interpretation
...
it should be made and should be followed and interpretation should be
made
seriously.
BARRAUD:
Does this mean that all cases that have currently and in the past
been in East Timor courts since 1999, will they have to be re-tried?
XIMENES:
No, the decisions which are finished are not possible to be
changed, will not be changed. Changes could take place only on the cases
pending on appeal.
BARRAUD:
Judge Ximenes agrees his decision has enormous implications in an
already overloaded legal system. It now threatens to divide the legal
institution itself. Already the special panel on serious crimes has issued
a statement indicating it will continue to abide by Indonesian law. The
Prosecutor General Longuinhos Monteiro has filed an application to the
Supreme Court for a clarification of the Judges verdict.
MONTEIRO:
Hopefully yes he should change the decision he's taken in the
Court of Appeal because it's quite embarrased all the justices, overall
the
judicial system in East Timor, because we'll be implicated not only the
judges but also the defence counsel and the prosecutors who have no,
knowledge on Portuguese law. Everybody's telling that of course through
our
constitution that the Indonesian occupation is illegal it's true, but
no
one is also saying that before it, the colonial occupation is legal.
BARRAUD:
So you're saying that the Portuguese occupation was just as
illegal as the Indonesian one?
MONTEIRO:
Same thing, from my point of view it's no different between
Indonesians and Portuguese, because we are fighting for our independence
before Indonesians came in here.
BARRAUD: But Dr Tim Lindsay says the issue is now a political one.
LINDSAY:
There are huge risks in East Timor today between the Portuguese
speaking mestizo elite and the majority of people who don't speak
Portuguese. So there is a lot of resistance to the application of
Portuguese law and language in East Timor, although it is nonethless
proceeding. I'm glad Ximenes made this decision despite the short-term
problems it's causing litigants, because it throws the ball back where
it
should be in the government's court. It's a political decision as to
whether they'll apply Indonesian or Portuguese law. If the government
doesn't like it then of course it won't. It must now at last make a
decision as to what law will apply so there's a degree of certainty about
that. And then we can move forward at least on that issue.
01/08/2003