Saturday 26 May 2012

Political interference in judicial processes in East Timor

2009 ETLJ 12 Political interference in judicial processes in East Timor

It was reported in the East Timor newspaper Timor Post on 3 February 2009 that President Jose Ramos Horta had held a meeting with with former rebel leader, Gastao Salsinha, and other followers of slain rebel leader Alfredo Reinado Alves, including Marcelo Caetano who, according the the President's brother last year, was named by President Horta as his would-be assassin on 11 February 2008. On 4 February, Timor Post further reported that the President had called for the fomer rebels to reveal the identity of the man who shot him on that date.

In the common law world, such interventions by the Head of State in the judicial process constitute a grave violation of the doctrine of the separation of state powers and the independence of the judicial process from political interference. Such interventions erode the rule of law and strike at the very heart of democracy.

As common law jurists know, the victory of the English common law began with the abolition of torture in England long before other countries and paved the way for the fairer treatment of political enemies of government when brought to trial. Above all, the victory of the common law over the Prerogative Courts preserved the medieval conception of the supremacy of law as a thing that could not be brushed aside for the convenience of government and could only be altered in full Parliament, not by the King alone.

This great principle, that law is above the executive, was violated in England during the revolutionary period of the Commonwealth and Protectorate. But it re-emerged at the Restoration and was confirmed in the revolution of 1688 which was effected against James II precisely to establish the principle that the law was above the King.

That English medieval idea of the supremacy of law as something separate from and independent of the will of the executive, disappeared in continental countries where the civil law system developed. But in England, it became the palladium of the common law liberties and had a profound effect on English society and habits of thought. These ideas are the foundation of the great democracies of the contemporary world.

What hope then, does East Timor, which implements what is essentially a civil law system based on the contintental European colonial law codes, have for the triumph of the rule of just law over the caprices of the political organs of the post-independence state while there are unquestioned phenomena such as the blatant manipulation of the judicial process that is demonstrated in the media reports of President Horta's entirely inappropriate interventions in the 11 February cases?

In so far as the United Nations mission in East Timor (UNMISET) remains silent on these matters, it becomes complicit in the destruction of the constitutional principles of the rule of law and the separation of powers and will no doubt stand impotently by wringing its hands when the next collapse of the legal order in East Timor brings calamitous sufferings to the people.

Donors should be wary of contributing vast funds through UNDP to the so-called development of the fundamentally dysfunctional judicial system in East Timor that is doomed to certain relapses of the disintegration of the rule of law if the problematic behaviors of the executive in relation to the judicial system continue and respect for basic legal principles is not pursued.

One part of the solution to this problem is the strengthening and empowerment of civil society. Civil society programs that are focused on the judicial system should be prioritised by the funding agencies. Particularly, credible and established East Timorese organisations such as the Judicial System Monitoring Program (JSMP), the Rights Association (HAK) and the East Timor Lawyers Association should be strongly supported by the donors.

Warren L. Wright BA LLB

First published on the East Timor Law and Justice Bulletin on 5 February 2009 at http://easttimorlegal.blogspot.com/2009/02/political-interference-in-judicial.html

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Index

2011

1. The Rule of Law: Theoretical, Cultural and Legal Challenges for Timor-Leste

2010


2009


2008


1. Justice for Serious Crimes Committed during 1999 in Timor-Leste: Where to From Here?

2. Joint Command for PNTL & F-FDTL Undermines Rule of Law & Security Sector Reform in Timor-Leste

3. Criminal Justice in East Timor and the Constitution of East Timor

4. Commentary on the Draft Arms Law in Timor-Leste

5. Deleted

2007

1. The Law on Political Parties (No 3/2004) & the Decision of the Timor-Leste Court of Appeal in the case of Vitor da Costa & Ors v Fretilin

2. Ethnicity, Violence & Land & Property Disputes in Timor-Leste

3. East Timor: Reconciliation & Reconstruction

4. Legal opinion on the appointment of the Prime Minister and the formation of Government in Timor-Leste

5. A legal opinion on the Formation of an Unconstitutional Government in Timor-Leste

6. Commission for Truth Friendship East Timor Competing Concepts of Justice

7. 25th of May 2006 Massacre & War Crimes in Timor-Leste

2006

1. Some Land Tenure Issues in Post-Conflict East Timor

2. Extradition from Indonesia to East Timor & the Serious Crimes Process in East Timor 1999 - 2005

3. East Timor: Internal Security, States of Seige & Emergency: A Note on the Constitutional Provisions & the Internal Security Law 2003

4. East Timor: The Constitutional Process Governing the Dismissal of the Government

5. Guidelines for Preparation of Outgoing Requests by East Timor for International Judicial Assisstance - Extradition Requests & Letters Rogatory - A Practice Manual

6. Roles of the President and the Prime Minister in the Current Constitutional Crisis in East Timor

7. Institutions & the East Timorese Experience

8. An Early Warning System for Timor-Leste: A Framework Concept of the Need & Possibility of an Early Warning System for the Timorese People

2005

1. The Timor-Leste Maritime Boundaries Case

2. Deleted

3. On the occasion of the International Conference on Traditional Dispute Resolution & Traditional Justice in Timor-Leste

4. General Facts on the Timor Sea & Facts on the Negotiations on a Permanent Maritime Boundary between Timor-Leste & Australia

5. Deleted

6. Morality, Religion & the Law: Abortion & Prosititution in East Timor

2004

1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992

2. UNTAET Land Policy


3. Some Observations on UNTAET Regulation No 27/2000 on the Temporary Prohibition on Transactions in Land by Indonesian Citizens

4. Sandalwood & Environmental Law in East Timor

5. Some Observations on the Report on Research Findings & Policy Recommendations for a Legal Framework for Land Dispute Mediation in East Timor

6. An Overview of East Timor's Law No 1 of 2003 on the Juridical Regime on Immovable Properties

7. Report on Research into Adat Land Law in East Timor

8. Short Analysis of UNTAET Executive Order No 2 of 2002 on the Decriminalisation of Defamation

9. An Overview of the Constitutional Drafting Process in East Timor

10. Some Notes on East Timor Government Decree No 1/2004 on the Orthographical Standard of the Tetum Language

11. UNTAET Guidelines for the Administration of Public & Abandoned Property by District Administrations

12. Tara Bandu: The Adat Concept of the Environment in East Timor

13. Finding Ways of Resolving Land Problems in East Timor