Wednesday 23 May 2012

Timor-Leste: the curious case of the fake policemen

Original Citation: 2009 ETLJ 2 Timor-Leste: the curious case of the fake policemen Bu V. E. Wilson[1]
13 February 2009

In less than a week the Security Council in New York will be debating[2] the United Nations Integrated Mission in Timor-Leste (UNMIT) mandate which is due to expire on 26 February. Although everyday security in Timor is greatly improved since the unraveling of law, order and the security institutions in 2006, the Timorese police (PNTL)[3] are weak, unaccountable and factionalised and there is little doubt that the current mandate will be renewed with few amendments. The current UNMIT mandate gives responsibility to the UN to, among other things, assist with the further training, institutional development and strengthening of the PNTL and the Ministry of Interior; as well as to assist the Government of Timor-Leste (GoTL) to conduct a comprehensive review of the security sector including the army (the F-FDTL), the PNTL, the Ministry of Interior and the Ministry of Defence.

There is, however, an elephant in the room. On 9 December 2008, in a little publicised Court of Appeal[4] decision in Timor-Leste[5] , a finding against defendant Adérito da Costa Ximenes Neto, Interim PNTL Commander Baucau[6] was overturned. Neto had been convicted, on 14 October 2008, of committing a false identity crime punishable pursuant to article 228 of the Penal Code[7]. He was sentenced to six months imprisonment, suspended for a period of 12 months.

The defendant, the most senior national police officer in Baucau, had originally been suspended on the order of the United Nations Police (UNPOL) Commissioner Juan Carlos Arévalo on 27 August 2008. The suspension followed completion of a disciplinary process against Neto which found practices carried out by him in violation of human rights. The following day Neto signed the suspension order and handed over his gun. However, upon the order of PNTL Police Inspector Henrique da Costa, Neto retrieved his gun from the armoury the same day; apparently the Commander General of the PNTL Afonso de Jesus did not “agree” with the initial suspension letter. Four weeks later UNPOL Police Commissioner Arévalo issued a second suspension notice to Neto. Upon receiving the notice on 1 October 2008 the defendant handed over his gun, car keys and SIM card and went home[8]. However after nine days he once again put on his uniform and returned to work. He was promptly arrested by UNPOL together with the Portuguese Republican Guard (GNR), and charged.

UNPOL’s executive policing authority is derived from the Supplementary Policing Agreement (‘the Agreement”) between the Government of Timor-Leste (GoTL) and the United Nations signed on 1 December 2006. The Agreement provides for executive policing to be carried out by UNPOL until such time as the PNTL are reconstituted through a process of screening, mentoring and certification. The Agreement also determines that it is the UNPOL Police Commissioner, in consultation with the Special Representative of the Secretary General (SRSG) and in close collaboration with the GoTL, who is to decide when the phased handover of Units and Districts from UNPOL to PNTL can occur, based on PNTL attaining benchmarks that would make such a handover possible. UNPOL has been placed under considerable pressure to have PNTL certified and operational before there is any evidence of PNTL being ready.

The Court of Appeal Decision found that as the Supplementary Agreement was not ratified by Parliament and promulgated as required by Articles 85 paragraph a, 9 no. 2 and 95 no. 3 paragraph f) of the Constitution of Timor-Leste (CRDTL) and subsequent publication in the Official Journal of the Republic did not occur, it does not have the force of law.  Consequently the UNPOL Commissioner did not have the legal power to carry out that suspension.

Endnotes

1. The author is a doctoral candidate at the Regulatory Institutions Network (RegNET), Australian National University. Contact details: bu.wilson@anu.edu.au
2. The Security Council debate is scheduled for 19 February 2009.
3. Polícia Nacional Timor-Leste
4.  The Court of Appeal in Timor-Leste is currently the highest court in the country. Although there is a provision for a Supreme Court and a Constitutional Court these roles are currently filled by the Court of Appeal.
5. Case no. 95/CO/2008/TR
6. Baucau is Timor-Leste’s second largest city after the capital Dili
7. The Indonesian Penal Code is still in use in Timor-Leste. Article 228 states that “Any person who with deliberate intent wears distinguishing marks or performs an act belonging to an office he does not hold or from which he has been suspended, shall be punished by a maximum imprisonment of two years or a maximum fine of three hundred rupiah”.
8. Although one of the arguments in Neto’s appeal is that he did not sign any documents between 1 and 9 October this is not the finding of the Court, there does appear to be some confusion on this matter.
9. On 15 July 2003 the Court of Appeal found that the applicable subsidiary law in East Timor is the Law of Portugal, rather than Indonesia and that United Nations Regulation 2000/15 governing the conduct of Crimes against Humanity trials was invalid. It also  purported to expand the definition of ´genocide under international law. For further details see JSMP (2003a). The Court of Appeal Decision on the Applicable Subsidiary Law in Timor-Leste. Dili, JSMP.
10. This decision was on the validity of the 2008 mid-year budget. For further details see http://www.laohamutuk.org/econ/MYBU08/BudgetRuledUnconstitutional08.htm

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First published in the East Timor Law Journal on 16 February 2009

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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