BACK DOOR Newsletter on East Timor      home      July news

" ... 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." Aniceto Guterres Lopes, Director, Yayasan HAK
See also:

BD: Calls for International War Crimes Tribunal  [Section on East Timor's Judicial System]
BD: Capacity Building & 'Timorisation' - A collection of recent statements, reports, articles and news
BD: Peoples' Participation - A collection of recent media releases, reports and articles
BD: East Timorese Grassroots Organisations & Networks

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, Yayasan HAK


Bahasa Indonesia:
Yayasan HAK - Yayasan Hukum, Hak Asasi dan Keadilan  Updated June 9
Maksud Umum: Yayasan Hak didirikan untuk maksud utama dua: 1. Kerja perkara - mewakili korban dan keluarganya di pengadilan. 2. Sokongan anjuran hak asasi manusia - melaporkan dan menerbitkan informasi mengenai HAM, proses pengadilan.
Sejarah Pendek: Yayasan Hak adalah yayasan bantuan hukum yang didirikan pada bulan Maret 1997, dan dibiayai oleh empat kelompok. Hak didirikan untuk menyediakan bermacam-macam pelayanan hukum kepada masyarakat Timor Lorosae.
Tetum: Jun 21 2000 Y-HAK: Lopes: Rekonciliasaun Housi Lei Nia Roman  Article http://www.pcug.org.au/~wildwood/earlyhakt.htm
English:Jun 21 2000 Y-HAK: Lopes: Reconciliation from a Legal Perspective: http://www.pcug.org.au/~wildwood/earlyhak.htm

English:
Yayasan HAK - Foundation of Law, Human Rights, and Justice  Updated June 9
Human Rights, Advocacy and Community Organising
Yayasan HAK is a registered East Timorese non-government organization (ETNGO)
General Mission: Yayasan Hak has two primary functions: 1. Casework - representing victims and their families in court 2. Human rights advocacy work - monitoring, reporting and publicising human rights information, litigation
Short History: Yayasan Hak is a legal aid foundation set up in March 1997, co-funded by four funding agencies. It was established in order to provide a range of legal services for the people of East Timor.
English:Jun 21 2000 Y-HAK: Lopes: Reconciliation from a Legal Perspective: http://www.pcug.org.au/~wildwood/earlyhak.htm
Tetum: Jun 21 2000 Y-HAK: Lopes: Rekonciliasaun Housi Lei Nia Roman  Article http://www.pcug.org.au/~wildwood/earlyhakt.htm


See also:

BD: Calls for International War Crimes Tribunal - A collection of recent reports, articles and news  [Section on East Timor's Judicial System]

BD: Capacity Building & 'Timorisation' - A collection of recent statements, reports, articles and news

BD: Peoples' Participation - A collection of recent media releases, reports and articles

BD: East Timorese Grassroots Organisations & Networks


BACK DOOR Newsletter on East Timor      home    July news
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