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HANNAH McCAUGHEY[*] working as a lawyer in East Timor saw first hand the enormous obstacles facing the administration of justice.
On 16 August 2002 at around 9.00 am, 192 of the 252 prisoners in East Timor’s largest prison facility, Becora Prison in the capital of Dili, escaped in a coordinated jailbreak, alarming the East Timorese Government and catching the attention of the international media. As prisoners over- whelmed prison security through force and sheer numbers, they clutched banners crying words of protest over long periods of pre-trial detention and claiming other abuses suffered under the penal system. This coordinated action was not simply a break for freedom: it was a large-scale protest orchestrated to ensure the government would feel the failures of the legal system to carry out due process.
Once the prisoners were beyond the prison gates, they remained close to the prison grounds and demanded to meet with the relevant government officials to voice their objections, primarily directed towards the deficiencies of the legal system in processing criminal cases. Two and half hours later, the Minister for Internal Affairs and the Deputy Justice Minister arrived as the government representatives to undertake negotiations. The negotiation produced promises from the Minister for Internal Affairs to bring the detainees’ concerns to the Council of Ministers and to sack the current judges and prosecutors and replace them with an international judiciary to deal with the failings of the court system. The prisoners agreed to return to their cells on the condition that their rights were protected. At the conclusion of the negotiation, 132 of the escaped prisoners, the vast majority of whom are pre-trial detainees, returned voluntarily to their cells. To date, 23 prisoners remain unaccounted for.
The jailbreak was an extraordinary occurrence which raises many questions about the current development of East Timor’s justice system. However, it is not the first time that serious concerns have been raised about deficiencies in the administration of justice. Local and international organisations, including Amnesty International and the US State Department, have noted that on-going problems with the development of the justice system have seriously affected the length of pre-trial detention and access to legal counsel. On 19 March 2002, prisoners at Becora refused to return to their cells on the basis that their rights were being violated. The recent jailbreak from Becora prison therefore is not an isolated episode but an incident which can be contextualised by the short history of the development of East Timor’s justice system, initially under the auspices of the United Nations Administration of the territory and now under the authority of the newly independent East Timorese state. This brief explores some of the factors which contributed to the Becora prison jailbreak and raises challenges for the on-going development of effective pre-trial detention mechanisms in East Timor.
On 20 May 2002, East Timor became the first new nation of the millennium, and a formally independent state after a three-year period of UN administration. The United Nations Transitional Administration in East Timor (UNTAET) was established on 25 October 1999, after Indonesian military and militia groups sacked the country in the aftermath of the Popular Consultation on 30 August that year, in which the population overwhelmingly rejected Indonesian rule. UNTAET was ‘endowed with overall responsibility for the administration of East Timor and … empowered to exercise all legislative and executive authority, including the administration of justice’.[1]
On the basis of this entrusted mandate, the UN administration inaugurated the establishment of East Timor’s justice system, which was inherited by the first elected East Timorese government on 20 May 2002. An understanding of the current crisis facing the East Timorese Government and the Justice Ministry requires an examination of the developments carried out by UNTAET in fulfilling its mandate.
From the outset, it must be recognised that UNTAET faced enormous obstacles in fulfilling its responsibility to administer justice. All pre-existing judicial infrastructure was destroyed, including all courthouses and prison facilities, and very few East Timorese had been trained under the Indonesian administration as legal professionals and fewer still had ever practised. The UN system did not incorporate the capacity to immediately deploy international lawyers with the relevant expertise or experience,[2] and at the same time it immediately inherited detainees from International Force East Timor (INTERFET) on charges of serious violation of international humanitarian law. The extremity of the circumstances initially necessitated long delays in the processing of detainees while the mechanisms were being established around the fact of their detention. One of the most extreme examples of this was five militia members detained by INTERFET in October 1999 who did not face trial until July 2001, and whose pre-trial detention history is chequered with long expired detention orders and serious administrative-related delays.
As time progressed under the UN administration, little advance was made in developing working mechanisms to ensure that justice was being administered and basic rights were fulfilled and protected. In July 2001, only one out of East Timor’s four district courts was fully operational. Access to legal counsel for detainees awaiting trial continued to be a serious problem. An Amnesty International Report on justice in East Timor in July 2001 reported ‘detainees often do not have access to legal counsel for weeks or even months … it is exceptional for detainees to have access to legal representation during the 72 hours permitted for police detention’.. Unlawful detention resulting from the expiry of detention orders also persisted as a serious problem. In one case, five detainees on serious charges of crimes against humanity were illegally detained for 11 weeks due to the expiry of detention orders.
The question is: why did gross systemic problems persist in the development of judicial mechanisms necessary for the basic administration of justice and upholding of basic rights? Three key areas reveal why initial problems faced by UNTAET in the administration of justice were not effectively overcome when the moment came to hand over the institutional apparatus to the independent Timorese government: training, resources and the legal framework.
UNTAET decided early within its period of administration to appoint solely East Timorese to the judiciary, prosecution and public defenders office, despite the fact that no Timorese lawyers had previously held these positions. The absence of institutional experience was to be countered through intensive training programs and mentoring by experienced international members of the legal profession. The scheme was ideologically commendable, but was clearly extremely ambitious, and one that could only be carried out with immense institutional and financial support. This institutional and financial support seldom materialised. In practice, the training presented logistical problems as the members of the legal system were required to serve their functions before or at the same time as the training was conducted. The recruitment of the mentors strictly followed standard UN employment policy based on proportional country representatives, and therefore did not allow for the recruitment of personnel with the relevant expertise and experience, either as trainers or as mentors. Further, training required the continual absence of already overburdened members of the fledgling judiciary, which increased existing delays in the functioning of the justice system.
Another key aspect of successful judicial development should have been to ensure that the newly appointed members of the legal system were provided with the resources necessary to carry out their basic duties. Such basic resources were often non-existent. A court library was never established, nor was administrative support, such as court clerks or a photocopier, provided for. The 12 appointed public defenders had two cars to share among them to cover the whole territory and were all required to share one office. This greatly hampered their ability to have access to the detainees in prisons or communicate confidentially with their clients.
Finally, the legal framework concurrently developed around judicial appointees has also contributed to confusion and delays. UNTAET Regulation 1999/1 provided that Indonesian law continued to apply except to the extent that it was inconsistent with international law. However, the extent of inconsistency was never systematically clarified. At the same time, UNTAET was drafting and promulgating regulations which governed the functioning of the legal system. One such feature of these regulations was the establishment of an investigating judge who is required to review the legality of arrest and detention, as well as to carry out various other judicial functions. The creation of this position fused roles from various legal jurisdictions and accordingly both East Timorese lawyers and their international mentors strained to come to terms with how this key figure in the judicial system should function and be utilised.
In short, while the challenges were huge, the UN administration often wavered in forward planning and active commitment to overcome at least basic systemic problems. The newly elected East Timorese government inherited these systemic problems, with fewer resources, less expertise and increasing demands being placed on the justice system. The latest result of such systemic problems is the jailbreak from Becora Prison.
However, the prisoners of Becora are not the only members of the community expressing their lack of confidence in the judiciary. Recently Jose Ramos Horta, the Minister for Foreign Affairs, stated that the judiciary is very weak and that the handover to a full East Timorese judiciary was premature, creating a loss of trust among potential investors. Other key government officials have proposed replacing the existing judiciary with international judges. Not only is such a proposal unconstitutional, it does not provide an answer to the problems raised by the Becora jailbreak: delays and breaches of due process will continue to occur when the system itself is flawed. Moreover, such a proposal is highly dangerous in the context of establishing a culture of the rule of law and judicial independence in a newborn democracy.. The challenge for East Timor is to find new and more effective ways to support the judiciary and other officers of the legal system, under-prepared for the magnitude of their roles in a system with serious administrative weaknesses and a legal framework filled with inconsistencies and ambiguities. The challenge is immense but one that must be addressed to uphold the rights of East Timorese citizens and the constitutional mandate of the government.
[*] Hannah McCaughey is a graduate law student in London.
© 2002 Hannah McCaughey
[1] SC Res 1272, UN SCOR (4057th mtg), UN Doc S/Res/1272 (1999).
[2] See Strohmeyers, Hansjorg, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, (2001) 95 American Journal of International Law at 51.
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