Marshall, Justice Shane --- "The East Timorese judiciary: at the threshold of self-sufficiency?" (FCA) [2005] FedJSchol 2

The East Timorese Judiciary: at the Threshold of Self-Sufficiency?*

Address to the Conference of Supreme and Federal Court Judges

Darwin, January 2005 by the Honourable Justice Shane Marshall**

Justice and democracy cannot be separated, no peace is possible if justice is not done[1]

On 30 August 1999, the day on which the United Nations administered referendum (or popular consultation) was held, East Timor took its first tentative steps to attaining independent status.

The results of the referendum were announced on 4 September 1999 and delivered an unequivocal message to the world; the people of East Timor, by a majority of 78.5% of voters, rejected the option that would entrench their country’s position of subjugation to Indonesia, albeit in an autonomous form, in favour of independence.

The response from the Indonesian and militia forces was swift and brutal. Despite the Indonesian government having undertaken to guarantee a safe passage through the referendum process, the campaign of violence which followed, decimated the country. It is estimated that in the ensuing weeks, the militia and Indonesian military (to the extent that they were distinguishable) killed approximately 1,400 East Timorese, burned 75% of the country’s homes and forcibly pushed 250,000 people into Indonesian held West Timor as refugees.

It was only following the intervention of the United Nations, specifically with the deployment of the UN sanctioned INTERFET defence force, that a semblance of security was restored to East Timor.

By the end of October 1999, with the earth still smouldering but with the last of the remaining Indonesian forces now removed from East Timor, talk of justice and democracy could begin.

A History of Indonesian Oppression

Of course, the events of 1999 cannot be viewed in isolation, but rather as the culmination of more than two decades of unrest at the hands of the Indonesian government and military.

Following the withdrawal from East Timor by Portugal, Indonesia, despite widespread international condemnation, intervened militarily in December 1975 and purported to integrate East Timor as its 27th province on 17 July 1976.

The United Nations never recognised the annexation and both the Security Council and the General Assembly called for Indonesia’s withdrawal.

In the years that followed, the international community, whilst quietly admonishing the Suharto administration, acquiesced in its oppressive conduct, perhaps fearful of the consequences of positive acts of censure and denunciation.

It took a change in leadership to place the concept of an independent East Timor squarely on the negotiating table.

On 27 January 1999, President B J Habibie, the successor to President Suharto, announced that the people of East Timor would be permitted to choose between autonomy within Indonesia and independence.

Contemporaneously with this decision, came the news that Xanana Gusmao, the imprisoned leader of the pro-independence guerilla group, Falintil, would be transferred from Cipinang prison in Jakarta to house arrest.

After the Referendum – Inception of the Transitional UN Administration in East Timor

On 25 October 1999, the Indonesian People’s Consultative Assembly voted to ratify the referendum result. The United Nations accepted temporary responsibility for the administration of the fledgling nation and, pursuant to Chapter VII of the UN Charter, established the United Nations Transitional Administration in East Timor, better known as UNTAET.

UNTAET identified as immediate priorities – apart from addressing the humanitarian disaster and facilitating the return of refugees – the restoration of governance and administration through the reconstruction of essential infrastructure, provision of basic social services, recruitment of civil servants, the revival of trade and commerce, and the rebuilding of the justice and law enforcement system[2]. It is this last priority that will be the focus of this paper.

A Framework for a Nascent Judiciary

The UN appointed Transitional Administrator, the late Mr Sergio Vieira de Mello[3], was charged with the responsibility of establishing the framework for a basic justice system for East Timor.

Pursuant to paragraph 1 of Resolution 1272, 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’.

Mr de Mello, as head of UNTAET, effectively became the legislature, the executive and the sole judicial authority of the United Nations.

In this capacity, Mr de Mello made three major legislative instruments which would strongly influence the manner in which the East Timorese justice system was to develop.

In Regulation 1 of 1999, the Transitional Administrator established a rudimentary legal regime for East Timor which contemplated that the laws applied in East Timor prior to 15 October 1999 would continue to apply (with certain qualifications)[4] until such time as they were supplanted by UNTAET regulations or East Timorese law.

Regulation 1999/1 also made provision for the exercise by the Transitional Administrator of powers of government, including legislative authority and conferred on him the power to issue and promulgate regulations and directives.

The question of what constitutes applicable law, whilst generally understood to be a reference to Indonesian law, has subsequently become attended with doubt, following the controversial decision of the Court of Appeal in the matter of the Public Prosecutor versus Armando dos Santos. The consequences of this decision, in which a majority of the Court held that the applicable, or subsidiary law of East Timor, was the law of Portugal, will be explored in greater detail later in this paper.

In Regulation 3 of 1999, Mr de Mello created a Transitional Judicial Service Commission and endowed the Commission with the function of advisory body in relation to the appointment by the Transitional Administrator of judicial and prosecutorial office bearers.

In Regulation 11 of 2000, the Transitional Administrator set out the law on court organization, establishing a particular model of courts, and providing for their administration and governance.

Whilst these and the other regulations made pursuant to UNTAET’S mandate[5] were intended to be transitional, it is likely, given the need for specific legislative repeal of these regulations that their effect will be pervasive and their legacy will endure for many years to come[6].

The Constitution of the Democratic Republic of East Timor

Notwithstanding the impact of the transitional administration, the pre-eminent legislative instrument in East Timor is its Constitution. The East Timorese Constitution was drafted with considerable input from the East Timorese community via a process of public hearings, conducted by committees comprising members of the Constituent Assembly[7].

The new Constitution, a final draft of which had been adopted on 22 March 2002, came into operation on the day of East Timor’s formal independence, 20 May 2002.

From that date, President Xanana Gusmao, elected by national vote, assumed office in accordance with the Constitution and the Constituent Assembly became the first National Parliament of East Timor.

The Constitution entrenches broad guarantees of both personal rights and freedoms, modelled on the traditional western ‘Bill of Rights’, and makes provision for certain economic, social and cultural rights and duties[8], including a progressive right to an ecologically balanced environment and concomitant duty to protect the environment for the benefit of future generations[9].

It reaffirms the commitment, first articulated in Regulation 1999/1, to the adoption of principles of international law and provides, at section 9(3), that ‘all rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid’.

Unlike the Australian Constitution, the Constitution of East Timor may be amended with relative ease by a two-thirds majority vote of the members of parliament[10]. The requirement of a national referendum is reserved for two issues only; the republican form of government and the national flag[11].

Section 154 of the Constitution of East Timor provides that it is incumbent on members of parliament to initiate a constitutional revision at intervals of six years. At other times, the review process may be instigated on a vote of four-fifths of the members of parliament. It is clearly contemplated that the Constitution will be an evolving document, reflecting the ongoing development and growth of the nation it purports to bind.

Sourcing Judicial Officers

With a legislative framework for a judicial system in place, UNTAET began the difficult process of identifying and recruiting legal professionals to fill the spectacular void in personnel that opened up in the aftermath of the September 1999 violence. As the United Nations Secretary-General observed in the wake of the vote for independence, ‘local institutions, including the court system, have for all practical purposes, ceased to function, with...judges, prosecutors and other members of the legal profession having left the territory.’

The judicial reconstruction exercise was premised from the very beginning on the assumption that institutions would be best served and arguably more sustainable, if they were staffed, at all levels, by East Timorese nationals.

Regulation 3 of 1999 (referred to earlier in the paper) gives legislative force to this sentiment. It provides at section 8.1 that ‘...the [Transitional Judicial Service] Commission shall receive and review individual applications of legal professionals of East Timorese origin for provisional service in judicial or prosecutorial office’.

The search for qualified East Timorese judicial personnel began in earnest on 25 October 1999 and involved a word of mouth campaign supported by local UNTAET staff and civil society groups.

The campaign was intensified when INTERFET volunteered to drop leaflets from aeroplanes throughout the territory of East Timor, calling for East Timorese lawyers, law graduates and law students to contact any UNTAET or INTERFET office or outpost.

One week later, a group of seventeen potential future jurists met in the Governor’s Building in Dili to discuss the opportunity to serve as members of the new East Timorese judiciary.

In the subsequent two months, applications for judicial or prosecutorial office were received from more than sixty East Timorese jurists. The first eight judges and two prosecutors were sworn in on 7 January 2000 for a probationary period of two years, but with the likelihood of subsequently obtaining life tenures.

The majority of those appointed had little or no practical legal experience and certainly none had served as a judge or prosecutor.

In an attempt to redress this overwhelming paucity of knowledge and experience, UNTAET developed a three-tier training strategy. This involved an initial ‘quick impact’ training course (run out of Darwin) prior to appointment to office, compulsory ongoing training whilst in office and participation in a mentoring scheme with experienced international legal practitioners serving as ‘shadow’ judges, prosecutors and public defenders.

This approach has been widely condemned as inadequate with some commentators suggesting that the focus on endowing the institution-building process with Timorese elements has been detrimental to the development of the judicial system[12]. Certainly, one must question the wisdom of deferring so completely to East Timorese jurists during the critical transitional period.

In fact, the United Nations, by the passage of Resolution 2001/25 has conceded that its approach (at least in relation to the appointment of judges) may have been misconceived. Section 6.1 of this amending Resolution provides that ‘Each District Court shall be composed of both international and East Timorese judges...’

More recently, the Government of East Timor, in cooperation with the Portugese Government implemented a one-year training programme for judges. The training, which was run out of the judicial training centre in Lisbon, Portugal, emphasized the development of practical skills such as legal reasoning, decision writing and education with respect to the fundamental laws of East Timor, including the new Constitution.

The first group of jurists, comprising eight judges and one prosecutor, returned to East Timor from Portugal in July 2004, immediately replenishing the greatly diminished pool of jurists who had been left, greatly under resourced, to run the various courts in their twelve-month absence.

It is now anticipated that future judicial training will take place in East Timor, following the opening on 7 September 2004 of the Justice Training Centre. The Centre, which is located in Dili, runs a one and a half year training programme designed to equip judges, prosecutors, public defenders and lawyers generally, with the skills required to operate effectively within the justice system institutions of East Timor and to accord them probationary court actor status.

The Court Structure of East Timor

Section 4 of Regulation 2000/11 provides that the judiciary in East Timor shall be composed of District Courts and one Court of Appeal.

Whilst it was originally contemplated that eight District Courts would operate in the territory of East Timor, it soon became apparent, given the scarcity of qualified legal professionals and the inadequacy of resourcing, that this proposal was untenable.

Subsequently, by way of an amendment introduced by Regulation 14 of 2000, the number of District Courts was reduced to four. Section 2 of Regulation 2000/14 stipulated that these District Courts would be established in Baucau, Suai, Oecussi and Dili.

With the exception of the Dili District Court (which in addition has exclusive jurisdiction over certain ‘serious crimes’; discussed separately below), each of the District Courts is endowed with a substantial and identical jurisdiction, emanating from section 6 of Regulation 2000/11, which states that ‘District Courts shall have jurisdiction in all matters as courts of first instance...’

The Court of Appeal derives its jurisdiction from section 14.2 of Regulation 2000/11 which provides that ‘the Court of Appeal shall have jurisdiction to hear appeals of decisions rendered by any District Court in East Timor...’

The Constitution of East Timor in fact makes provision for a bi-partite appeal system, comprising the Court of Appeal and a second institution, the superior Supreme Court of Justice. However, the current deficit in human resources has hindered the establishment of this second appellate body. Instead, the Court of Appeal has been endowed with the authority to exercise the jurisdiction of the Supreme Court of Justice (in addition to its own jurisdiction) on an interim basis[13].

Consistent with the transient nature of the UNTAET regulatory framework, fine-tuning of procedural provisions has occurred not infrequently to accommodate the exigencies of the situation in East Timor.

For example, section 9.2 of Regulation 2000/11 made provision for judges of the District Courts to sit in panels of three, except in criminal matters that carry a maximum penalty of one year imprisonment and in civil law matters involving claims not exceeding US$1,000. However, when it became apparent that this drafting was productive of an unworkable situation where almost all matters required the composition of a three-judge panel, section 3 of amending regulation 2000/14 was introduced. This had the effect of extending the ambit of single judge matters to include those criminal proceedings attracting a sentence of imprisonment not exceeding five years.

The District Courts

The District Court of Dili formally commenced operations in March 2000 with the District Courts of Oecussi and Baucau opening their doors on 31 May 2000 and 15 September 2000 respectively. The operating status of the District Court of Suai is more difficult to characterize as it has, from its inception, been run (intermittently) out of the Dili District Court Complex.

Regulation 2000/11 contemplates that the Dili District Court is to be the repository of any residual first instance jurisdiction by providing at section 7.3 ‘For a transitional period and until otherwise determined by the Transitional Administrator, the judges appointed to the District Court in Dili shall have jurisdiction throughout the entire territory of East Timor’.

There are currently five panel judges and two investigating judges (a creature of the civil law system) working in the Dili District Court. One of the panel judges is appointed to the office of Judge Administrator and is responsible for reporting to the President of the Court of Appeal in respect of administrative matters.

In addition, four public prosecutors and six public defenders serve the Dili District Court. The Registry of the Dili District Court employs nine staff to administer both the criminal and civil divisions of the Court.

The Baucau District Court currently comprises two panel judges, one investigating judge, two public prosecutors and one public defender. Like Dili, the Registry has a staff of nine.

The Suai District Court, despite its territorial dislocation, does support a small team of jurists, comprising two panel judges, one public prosecutor and one registry officer. However, not infrequently, the judges assigned to the Suai District Court have been sent to preside over matters at the Oecussi District Court, where currently there are no panel judges.

It is fair to say that the staffing of each of the District Courts is in a state of unsatisfactory flux, attributable in large part to the operation of the training programme in Portugal and the consequent absence of those judges selected to participate.

With the exception of Dili District Court, none of the District Courts can currently assemble from its own staff, a three-judge panel and must look to the other courts for assistance.

This gaping deficit in human resources[14] is one of a number of serious impediments to the self-sufficiency of the courts, and indeed the formal justice system in East Timor and has serious ramifications for the progress of democracy in the nation. It is hoped that this problem, along with others identified later in this paper, can be addressed before the United Nations, in its current guise as UNMISET, finally withdraws from East Timor in May 2005[15].

The Court of Appeal

The Court of Appeal has been operating since July 2000 out of a courthouse located in the Dili suburb of Caicoli. However, like the District Courts of East Timor, its development has been hindered by staffing problems, the most serious of which led to the complete shut-down of the Court for a period of almost eighteen months from October 2001 to July 2003.

Not surprisingly, the Court of Appeal is now confronting the daunting task of dealing with the significant backlog of cases which accumulated during its closure. Apparently, a decision has been taken to accord priority status to criminal cases and interlocutory appeals.

According to section 15.2 of Regulation 2001/25, the judges of the Court of Appeal shall sit in panels of three judges. In relation to appeals from “serious crimes”, the Regulation expressly provides that the panel shall be composed of both East Timorese and international judges.[16] However, this specific provision appears to have been given more general application to the point that it is universally accepted (at least for the moment) that all Court of Appeal panels must be constituted by at least one international judge.

Section 40.1 of Regulation 2001/25 provides that a party may appeal to the Court of Appeal from a decision of a District Court on the following grounds:

(a) a violation of the rules of criminal procedure;
(b) a violation of the procedural or substantive rights of the accused;
(c) inconsistency within grounds of the decision;
(d) material error of law or fact.

Section 40.2 goes on to provide that a party shall commence an appeal by filing a Notice of Appeal with the court of first instance no more than ten days after the appeal decision is released. If the prescribed time limit lapses, there is a presumption that the parties have waived their right to appeal.

Once an appeal has been initiated, a written appeal statement must then be filed within thirty days.

Current figures provided by the Judicial System Monitoring Program (JSMP), an independent NGO dedicated to monitoring the judicial system of East Timor, indicate that 133 appeals have been filed with the Court since its establishment in 2000. Decisions have been handed down in seventy-one of these appeals with the remaining sixty-two appeals still pending.

Obstacles to Justice

Under-Resourcing

Whilst the various courts and judicial institutions established in East Timor pursuant to the United Nation’s mandate have each been beset by a unique set of challenges particular to the environment in which they function, or affected disproportionately by problems that are endemic in nature, it is not difficult to identify a series of common problems that continue to operate as an overwhelming obstacle to the attainment of a self-sufficient judicial system in East Timor.

Foremost among these is the problem brought to bear by the legacy of the Indonesian “scorched earth” campaign which quite literally, reduced to rubble the majority of East Timorese buildings and infrastructure in the wake of the 1999 popular consultation.

The process of rebuilding a judicial system has therefore been hindered from the outset by a lack of the most basic resources, necessary to make operable even the most rudimentary of legal systems.

Examples frequently cited by JSMP in their reports on the status of the District Courts include the general inadequacy of communication facilities, such as access to land lines and the insufficient number of printers available for use by judges and court registry staff. Illustrative of this point is the intelligence provided by JSMP[17], which suggests that a flow-on effect of the lack of dedicated printers for judges means that they are forced to take their documents to the registry for printing, making themselves vulnerable to allegations of impartiality and breach of confidentiality.

It has also been reported by JSMP (and anecdotal evidence supports this view) that there is currently only one landline available for use by the Dili District Court. Consequently, judges and other judicial officers are required to pass though a public waiting area to access telephone facilities, doing little to reduce the perception of impartiality.

In the Districts, the situation is aggravated by the complete lack of telephone or fax facilities. Communications emanating from Oeccusi and Baucau District Courts are usually made by personal mobile phones.

The work of the District Courts is also hampered by the general inability to access funding for the myriad of incidental expenses that arise, often in the context of dealing with witnesses in criminal matters. JSMP observed that one of the judges from the Suai District Court used his own money to procure the attendance of a witness in Dili, in the absence of available funding[18].

And, of course this leads to the issue of remuneration of judicial offices, a matter which is particularly pertinent given the political backdrop (characterized by general mistrust by the populus of judicial institutions) against which the East Timorese judiciary is forged. A prerequisite of any legitimate judicial system is that judges are adequately compensated in order to minimize the risks of corruption. However, the monthly salary of even the highest paid judicial officers barely covers the cost of living in East Timor, which, despite the abject poverty of the country[19], has been grossly inflated by the large, but declining, international contingent.

Training and Access to Research Facilities

Inexorably linked to the general deficit in resources, is the impact this has had on the quality and legitimacy of judicial decision making. As has previously been acknowledged, the first jurists appointed in East Timor came equipped with little more than a law degree and were launched, with little training, into a complex legal framework comprising elements of international law, UNTAET Regulations, Indonesian law, East Timorese law and the newly drafted Constitution. Jurists have also been forced to contend with a legal system which borrows from both civil law[20] and common law jurisdictions, although more largely from the former.

Perhaps not surprisingly, JSMP has observed that in the day-to-day proceedings of the District Courts, questions relating to the applicability of laws are rarely raised. Instead, the law has been handled, both by judges and practitioners with a disturbing degree of generality, indicative of a lack of comprehension of the intricacies of the new regime. In particular, members of the legal profession rarely frame arguments around the Constitution.

Compounding this situation is the fact that judges of the District Courts do not have access to the Internet, lack the resources of a court library and, for the most part, must carry out their own research.

The Applicable Subsidiary Law in East Timor

On 15 July 2003, the Court of Appeal delivered its decision in the matter of the Public Prosecutor versus Armando dos Santos.

Until the Court of Appeal decision, the phrase ‘the laws applied in East Timor prior to 25 October 1999’, which derives from UNTAET Regulation 1999/1, was generally understood to be a reference to Indonesian law, the law which for over two decades had applied in fact in East Timor. However, the Court of Appeal, adopting a highly technical interpretation of the phrase, determined that the reference must be to laws which ‘validly applied’. As the Indonesian occupation could not be countenanced under international law, it followed that Indonesian law could not have validly applied. Consequently, the law imported by Regulation 1999/1 was, on the Court’s reasoning[21], the law of Portugal.

The decision of the Court of Appeal in dos Santos has been the subject of widespread criticism, not least from judges of the Dili District Court and the Special Panels for Serious Crimes.

On 24 July 2003, the Special Panel for Serious Crimes issued a decision in the matter of Public Prosecutor v Joao Sarmento and Domingos Mendonca, declaring that it did not consider itself bound by the decision of the Court of Appeal. Indeed, the practice of the Dili District Court, including the Special Panels for Serious Crimes, in the wake of dos Santos, has been to disregard the decision of the appellate court and continue to apply Indonesian law in decision- making.

This in effect means that lower courts in East Timor are no longer deferring to the Court of Appeal (at least on this discrete issue), leading to hierarchical distortion. Yet, to yield to the decision in dos Santos would, on most views[22], be contrary to the express intention promulgated by the United Nations in drafting Regulation 1999/1.

At the time of writing, the East Timorese Parliament had drafted, but not yet passed, a bill which, if enacted would unambiguously determine the question of the applicable subsidiary law in favour of Indonesian law[23].

Linguistic Barriers

One legacy of East Timor’s troubled past is a rich patchwork of linguistic influences derived from periods of Portugese colonization and Indonesian occupation and the geography of East Timor, which, due to its mountainous interior, has provided fertile conditions for the evolution of a variety of regional dialects.

Whilst the Constitution states that the official languages of East Timor are Tetum (a kind of lingua franca spoken or understood in most parts of the island) and Portugese, section 36 of Regulation 2000/11 expands the working languages of the public service in East Timor (at least in the transitional period) to include additionally, Bahasa Indonesia and English.

Whilst this provision recognises the diversity of languages employed in East Timor, it is problematic to the extent that it has exponentially increased the difficulties associated with conducting proceedings in languages which are not understood by one or more of the actors (including at times, the judges themselves).

Despite the fact that UNTAET Regulations make it mandatory for translation and interpretation services to be provided[24], there are simply insufficient numbers of court translators and interpreters to accommodate all exigencies. In some cases, judges or court officers have provided an ad hoc solution to language difficulties by translating for the parties. Whilst the initiative demonstrated by these court actors is laudable, it does not represent a long-term solution.

Where professional translating and interpreting services have been used, the standard has not been universally high, perhaps highlighting a deficiency in the current training programmes available in East Timor and/or the selection criteria applied in the recruitment of language specialists to the courts[25].

Whilst these inadequacies inevitably delay the conduct of proceedings they may, in some cases, produce more serious consequences. For example, in a trial before the Special Panel for Serious Crimes[26], an interpreter appointed to provide a translation from Indonesian to Bunak (a local East Timorese language) transformed the innocuous statement ‘you have come to testify in the case against the three accused’ to the highly prejudicial, ‘you have come here to testify against the three accused who murdered people’. It was only following the protests of the two defendants that the interpreter was dismissed. Nobody else present in the courtroom had been cognizant of the error committed.

The choice of language used in proceedings, at least at the Court of Appeal level, is often determined by reference to the language proficiencies of the prosecution and defence, with scant regard for the linguistic requirements of the accused. Where translation services are not provided or are of dubious quality, the ability of the accused to obtain a fair hearing is severely compromised.

Also compromised is the ability of parties to access transcripts of proceedings. Whilst section 26.1 of Regulation 2000/11 (as amended) makes it compulsory for courts in East Timor to ensure that written or recorded notes of proceedings are taken and made available to parties, this is rarely, if ever, happening. In the absence of official transcripts, parties (and judges) must rely on their own, often incomplete, notes. The potential for error cannot be overstated.

Professionalism

The judicial system in East Timor is, by any measure, still in its infancy. As such, it has not yet been imbued with the status and professionalism of an established legal institution. Its actors are for the most part inexperienced and are grappling daily with new questions of law, within the context of an evolving procedural and political environment. Amidst this climate of change, come many challenges.

Foremost among these is the overwhelming need for the judicial system and its actors to distinguish themselves emphatically from the oppressive and corrupt judiciary that operated during the period of Indonesian occupation. It is essential that members of the judiciary act with impartiality and in a manner that gives practical effect to the doctrine of separation of powers.

The legal community in East Timor is small and consequently many close relationships have been forged between judges and other members of the profession, such as prosecutors and public defenders.

At times, these actors have difficulty discerning where the line between friendship and professional responsibility should appropriately be drawn. Illustrative of this point is the reluctance of defence counsel, observed by JSMP in the course of its judicial monitoring programme, to file an appeal from an unfavourable decision on the basis that doing so may compromise their relationship with the primary judge.

JSMP noted[27] that there is a basic lack of understanding by Public Defenders of what the role of defence counsel entails. This is borne out by studies which demonstrate that as a general rule, defence counsel are poorly prepared for hearings and defence lawyers, mainly Public Defenders, do not spend adequate time in conference with their clients, at any stage of proceedings.

Whilst this situation will most likely improve over time as legal practitioners become accustomed to discharging their professional duties, the reputation of the judiciary is in danger of being severely damaged in the interim. Current endemic practices, such as the failure of defence counsel to call witnesses, and isolated incidences such as in the case of Prosecutor v Antonio F Horta[28], where the Public Defender acting on behalf of Mr Horta stated that he agreed with the prosecution’s case, do little to engender confidence in the judicial system.

However, it is not just lawyers who are experiencing difficulties adjusting to the new legal regime. Members of the nascent judiciary are also guilty of conduct which suggests they have an incomplete or tainted understanding of the responsibilities that attach to their role. This is particularly evident in relation to matters of procedure.

JSMP has observed that it is a common practice in criminal cases for judges of the Dili District Court to ask the parties, once a decision has been handed down, whether they are satisfied with the outcome. In essence, this is an indirect means of determining whether an appeal will be filed. Not surprisingly, in circumstances where a conviction is recorded, the defence counsel will generally indicate satisfaction with the verdict, thereby informally relinquishing their legislated right to appeal. This practice, whilst contrary to UNTAET Regulations governing procedure, appears to have its genesis in Indonesian law.

A further practice, which threatens to subvert one of the most fundamental rights known to criminal law, is the failure of judges to provide an explanation to accused of the right to remain silent. This right, which is protected by section 6.3(h) of Regulation 2000/30 and which derives from the presumption of innocence enshrined in the Constitution, is in danger of being deprived of all substance.

Increasingly in criminal proceedings, following the close of the prosecution case, the accused is told by the presiding judge to take a seat in front of the bench and provide an oral description of the events, the subject of proceedings. It is imperative that this practice cease immediately with efforts also made to address the underlying problem of the judiciary’s incomplete understanding of the nature of fundamental rights and how they manifest themselves in the conduct of criminal (and civil) proceedings.

The role of Traditional Justice

Whilst this paper does not purport to provide an exhaustive exposition of the various legal systems operating, in one form or other, in East Timor, it would be inexcusable not to mention the role of traditional justice. This is particularly so given the fact that most critiques of the judicial system in East Timor focus, perhaps too emphatically, on the legal institutions which bear the heavy imprimatur of the United Nations and have been influenced strongly by the international community.

The traditional justice system is a product that is uniquely East Timorese and for many people, represents a way of life and culture that has been passed on from generation to generation.

Traditional justice at an abstract level, refers to a system where resort is had to local leaders who hear and make rulings on incidents, often cases of domestic violence, and in the process, apportion blame to one or both of the parties involved. The payment of compensation then takes place between the families.

There is no doubt that in the villages of East Timor, traditional justice is still being regularly employed. Whilst there is no suggestion that traditional justice should be dispensed with, there is an obvious need to at least examine how it can continue to operate as part of, or as an adjunct to, a formal justice system.

For example, how to reconcile a traditional system of justice that is based on cultural beliefs that are inherently discriminatory to women with a formal justice system that entrenches international human rights obligations, including a right to equality of the sexes? These and other issues, perhaps more appropriately described as ‘challenges’, rather than ‘problems’ must be addressed as part of the overall mandate to establish a functioning and credible judicial system in East Timor.

The Special Panels for Serious Crimes and Serious Crimes Unit

The Special Panels for Serious Crimes (Special Panels) were established by UNTAET in June 2000 as a means of providing a dedicated (albeit temporary) forum for the prosecution of perpetrators of the violence that occurred in East Timor during and immediately following the period of Indonesian occupation.

The Special Panels, which operate out of the Dili District Court, are an example of a hybrid tribunal, comprising both United Nations and local East Timorese elements. Each panel consists of one East Timorese judge and two international judges.

The Serious Crimes Unit (SCU) was similarly constituted by UNTAET as a hybrid organization, with the mandate to investigate, and ultimately prosecute, cases before the Special Panel. The SCU is currently staffed principally by United Nations international civilian staff and police officers.

Since East Timor gained independence on 20 May 2002, the SCU has operated under the authority of the Prosecutor-General of East Timor. However, it continues to receive substantial assistance from UNMISET, which assistance will continue until the expiry of the UNMISET mandate on 20 May 2005[29]. The United Nations’ Secretary General, Mr Kofi Annan, in a report on the United Nations Mission of Support in East Timor dated 29 April 2004[30] acknowledged that the long-term viability of the SCU would depend to a large degree on the extent to which the international community was prepared to step in and fill the funding breach created by the departure of UNMISET.

The Special Panels are the subject of UNTAET Regulation 2000/15, which confers on them the exclusive jurisdiction to deal with ‘serious criminal offences’. These serious criminal offences are defined as genocide, war crimes, crimes against humanity, murder, sexual offences and torture[31].

The substantive law used by the Special Panels in trials of genocide, war crimes and crimes against humanity is taken verbatim from the Rome Statute for the International Criminal Court. However, in respect of crimes of murder, sexual offences and torture, resort is had to the Indonesian Penal Code.

The Special Panels enjoy universal jurisdiction[32], without temporal qualification, over genocide, war crimes, crimes against humanity and torture. However, in respect of murder and sexual offences, its universal jurisdiction is restricted to acts alleged to have occurred between 1 January 1999 and 25 October 1999.

Of course, how universally this jurisdiction can in fact be exercised will, as foreshadowed by Mr Kofi Annan, be determined more acutely by practical exigencies, rather than any definitional constraints.

To date, the policy of the SCU has been to use its limited resources[33] as efficiently as possible. To this end, it has chosen to focus on ten priority cases (the Priority Cases), rather than conduct an all encompassing investigative process.

The Priority Cases include examples of some of the worst atrocities committed in the territory of East Timor; notably the Liquica church attack, the Suai Church massacre[34], the September attack on the compound of Bishop Belo, the Maliana Police station attack, and the TNI Battalion 745 killings. Perhaps given the notoriety of these attacks, evidence in respect of these cases has been relatively easy to obtain and the key perpetrators, readily identifiable. However, of the total 202 persons indicted for crimes against humanity in the Priority Cases, 183 remain at large in Indonesia. Efforts to secure the extradition of these accused have so far proved wholly unsuccessful, despite the fact that INTERPOL arrest warrants have been issued.

Case number 4/2001, known as the Lolotoe case, was the second of the Priority Cases to be finalized. It was the subject of a comprehensive monitoring programme and subsequent report by JSMP, an exercise that was hampered by the refusal of court officers to provide JSMP with access to the official transcript of proceedings. Despite this, the findings and observations of JSMP provide a useful analysis and illustration of the work of the SCU and the Special Panels.

The Lolotoe case involved twenty-seven counts of crimes against humanity leveled against three accused, two of whom were alleged to have been commanders of the Kaer Metin Merah Putih militia (KMMP)[35] and a third who was a former village chief.

The incidents, which included imprisonment, torture, inhumane acts, persecution, rape and murder, were alleged to have taken place between May and September 1999 in and around Lolotoe, a sub-district of Bobonaro (one of East Timor’s thirteen districts) located near the border with West Timor. They were purportedly carried out by the KMMP, in conjunction with Indonesian forces. The acts, which were generally violent in nature, were directed against members of the civilian population who were perceived to be sympathetic to the pro-independence cause.

The original indictment relating to these actions named five co-accused. However, when it became apparent that two of the accused were at large in Indonesia, the indictment was revised to deal with the three accused whose whereabouts had been ascertained and who were being held in pre-trial detention in Dili.

As events transpired, two of the remaining defendants, Joao Franca da Silva and Sabino Gouveia Leite, pleaded guilty shortly after proceedings commenced, with only Jose Cardoso Fereira, the third defendant, being subjected to a full criminal trial. Consequently, the Special Panel[36] was required to produce three separate judgments, which together constitute the Lolotoe case.

The Lolotoe case is noteworthy as it represents the first time that a defendant has been tried and convicted for rape as a crime against humanity. It was also the first case in which plea bargaining was used as a means of effectively reducing the convictions recorded and the severity of sentencing of the accused. Since Lolotoe was concluded, the practice of plea bargaining has been employed regularly by defence lawyers. This has implications not only for persons accused under SCU indictments but also for the manner in which the crimes attributed to the brutal Indonesian military regime are recorded for prosperity.

Hearing of the Lolotoe case commenced on 8 February after three earlier trial dates had been vacated. Although the hearing took only one month to complete, the trial was protracted, with the approximately twenty sessions conducted over a thirteen month period that ended on 5 April 2003, with the conviction of Jose Cardoso.

Jose Cardoso was convicted of two counts of murder, four counts of imprisonment or severe deprivation of physical liberty and one count each of rape, torture and other inhuman acts. The Court acquitted Mr Cardoso of two counts of murder, citing the failure of the prosecution to successfully prove command responsibility. In determining this issue, the Court referred extensively to international jurisprudence on command responsibility, drawing particularly from decisions of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.

The Court sentenced Jose Cardoso to a total of twelve years imprisonment. Factors such as his expression of remorse, and an acceptance by the Court that he was coerced into his role with the KMMP, militated against a more severe punishment. Shortly after the verdict was announced, Mr Cardoso filed an appeal. However, at the time of writing, the written appeal statement had yet to be filed as defence lawyers had still not been given access to official transcripts of proceedings.

Jhoni Franca and Sabino Leite each pleaded guilty to five counts of crimes against humanity, pursuant to the terms of separately negotiated plea agreements. In both cases, a charge of persecution was withdrawn. Mr Franca and Mr Leite were sentenced to terms of imprisonment of five years and three years respectively[37].

In dealing with the plea agreements, the Court accepted, on a wholesale basis and without rigorous analysis, that the facts established in the truncated proceedings did substantiate the admissions of guilt and the consequent convictions which were recorded. JSMP, in its report of the Lolotoe case, identified this cursory treatment by the Court as less than satisfactory.

More troubling however is the impact that endemic use of plea agreements will have on the efficacy of the Special Panels in achieving the United Nation’s stated objective of bringing those ‘responsible for grave violations of international humanitarian and human rights law’ to justice[38].

Whist the use of plea agreements relieves the administrative burden associated with the prosecution of serious crimes, it can be productive of an outcome that substitutes an incomplete record of events for a more exhaustive and honest documentation of human rights violations, based on eye-witness testimony procured through a comprehensive trial process and a full examination of the charges as alleged. Where plea agreements are relied on as a means of delivering justice, the level of public accountability is severely diminished, in turn reducing the potential for serious crime prosecutions to facilitate reconciliation.

However, the outlook following Lolotoe is not entirely bleak. Since the first of the Priority Cases, Los Palos, was prosecuted some six months earlier, there has been a marked improvement in the overall standard of trials before the Special Panels. In particular, JSMP made positive observations about the significantly higher standard of legal representation and legal argument before the Court and the professional manner in which the Court generally operated.

JSMP was also impressed by the Court’s handling of the rape charges and its sensitive approach to dealing with witnesses, according them the respect and protection they required.

At the time of writing, the SCU had filed eighty six indictments charging 372 individuals with serious crimes and, being cognizant of the impending deadline for UNMISET’s mandate, the Special Panels had expanded sitting hours in an attempt to expedite the trial process. It is however widely acknowledged that the objective of justice for all victims of the 1999 violence will not be realized within the truncated time frame and alternative proposals to redress the deficit are being canvassed including the establishment of an international tribunal and an international truth and conciliation commission.

The Ad Hoc Human Rights Court in Jakarta

What the Special Panels have failed to do, despite the best endeavours of those involved, is bring the most high-ranking perpetrators of atrocities to justice. At the time of writing, 286 persons named in indictments issued by the SCU remain outside the jurisdiction of East Timor. These accused represent the highest echelon of the Indonesian military, including notably, General Wiranto, unsuccessful 2004 Presidential candidate and Indonesia’s military commander at the time the most serious acts of violence were carried out.

Any hope that these perpetrators would be brought to justice through the vehicle of the Ad Hoc Human Rights Court of Indonesia was decisively extinguished by the decision of the Indonesian Court of Appeal on 29 July 2004, in which it overturned convictions against four Indonesian security officers. The effect of this decision was to allow all Indonesian military personnel connected with the bloody campaign of terror to walk free.

The Ad Hoc Human Rights Court of Indonesia (the Ad Hoc Court) was established in August 2001 and began hearing cases in March 2002.

From its inception, human rights groups were skeptical of its ability to deliver justice. It seems that this lack of confidence has been vindicated.

The Ad Hoc Court was constituted by judges who here hand-picked for the role during covert sessions of Indonesia’s Supreme Court. Most had no training in, or experience with, international law or human rights, yet presided over hearings in which crimes against humanity were prosecuted under a statute modeled on the Rome Statute of the International Criminal Court.

Before its effective closure, the Ad Hoc Court heard twelve separate trials involving a total of eighteen defendants. It acquitted ten military and police officers and one East Timorese civilian and recorded convictions against seven of the accused. However, five of those convictions have subsequently been quashed.

The four accused whose convictions were overturned by the Indonesian Court of Appeal include former regional military commander Major General Damiri, who the Ad Hoc Court found guilty of ‘gross human rights violations’ and sentenced to three years imprisonment.

The other men cleared are ex-military Chief Colonel Noer Muis, implicated in the attack on the residence of Bishop Belo, former police Chief Commissioner Hulman Gultom and Lieutenant Colonel Soedjarwo. Disturbingly, one of the men acquitted by the Court of Appeal is now running the ethics programme at Indonesia’s army staff training college.

Contemporaneously with its decision to clear these four accused, the Indonesian Court of Appeal also halved a ten year sentence given to Eurico Guterres, a Timorese leader of a pro-Jakarta militia.

The other accused who has more recently escaped impunity is another Timorese national. Abilio Soares Osario, East Timor’s former civil governor, began a three year prison term in Indonesia in July 2004 for his failure to intervene in the attacks carried out on the Liquica church, the house of Manuel Carrascalao[39], the house of Bishop Belo and the Suai church. Each of these incidents is regarded as a Priority Case by the SCU. Abilio Soares was convicted of two counts of crimes against humanity, each premised on the concept of command responsibility. However, his conviction did not stand. On 4 November 2004, Indonesia’s Supreme Court annulled its own decision to imprison Soares, following the introduction of new evidence, which purportedly proves Soares’ innocence.

Whilst the failure of the Ad Hoc Tribunal to deliver justice is abundantly clear in the aftermath of the Court of Appeal’s decision, international observers were alive to its shortcomings early on when it became evident that prosecutors were going to frame indictments in a way that seriously misrepresented the nature of the crimes committed.

Instead of portraying the human rights violations as part of a widespread and systemic pattern of violence directed against the population of East Timor, the prosecution doggedly presented most cases of abuse as isolated incidents, the result of spontaneous conflict between armed factions within Timorese society. Consequently, without any suggestion of a systemic attack, charges which would otherwise be prosecuted as crimes against humanity, were reduced to something less, without the attendant stigma reserved for crimes of that nature.

Conclusion

Now that the work of the Ad Hoc Court has concluded, international contingencies are pushing for the intervention of an independent tribunal or panel of experts to inject some much needed integrity and credibility into the prosecution process.

To date, the East Timorese government has not embraced these proposals, emphasizing the need to engage with its Indonesian neighbours on a conciliatory basis, putting behind it the abhorrent acts of 1999 and, indeed, the twenty four years of Indonesian occupation.

The most recent proposal contemplates the establishment of a ‘truth and friendship commission’ that would reconsider the massacre of East Timorese at the time of the 1999 independence vote with the objective of strengthening ties between Indonesia and East Timor. Both countries appear to resolutely oppose the further involvement of the United Nations.

What may bear all the trademarks of capitulation is probably something in between. The East Timorese people, despite unequivocal support from the international community, are still in a precarious situation. They enjoy independent status but are beset by constant challenges as they continue the daunting task of nation building. To suggest that the East Timorese government should aggressively and stridently pursue justice from the Indonesian administration is unrealistic. However, it is equally unrealistic to rely completely on reconciliation as a means of achieving closure on a brutal period. Both justice and reconciliation are needed to heal the wounds of the past and allow East Timor to pursue unburdened down the path to self-sufficiency[40].

20 December 2004

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* The considerable assistance of my Associate Ms Catherine Symons in the preparation of this paper is acknowledged.
** A Judge of the Federal Court of Australia
1 The Prosecutor General of East Timor, Longuinhos Monteiro, speaking at the ceremony to mark the appointment of Mr Nicholas Koumjian as Deputy General Prosecutor for Serious Crimes in East Timor on 19 January 2004

[2] Source: Secretary General of the United Nations, Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2000/53 (2000) [40]-[62]
[3] Mr De Mello was tragically killed by a terrorist bomb on 19 August 2003 whilst stationed in Baghdad. Mr De Mello was serving as the United Nations High Commissioner for Human Rights at the time of his death.
[4] Section 3.1 of Regulation No. 1999/1 provides, by reference to section 2, that the applicable law will apply only insofar as it does not conflict with internationally recognised human rights standards.
[5] For example, Regulation 2000/16 on the Organisation of the Prosecution Service, Regulation 2000/30 on the Transitional Rules of Criminal Procedure, Regulation 2001/1 on the Establishment of a Defence Force for East Timor, Regulation 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, Regulation 2001/22 on the Establishment of the East Timor Police Service, Regulation 2001/23 on the Establishment of a Prison Service in East Timor and Regulation 2001/24 on the Establishment of a Legal Aid Service in East Timor
[6] Amnesty International has been critical of what it refers to as a ‘lowest common denominator’ approach to the drafting of UNTAET regulations. That is, making provision only for what it is thought can be implemented in the prevailing climate of communication difficulties, institutional weakness and economic under-development – Source: ‘East Timor – Justice past, present and future’- AI Report, 27 July 2001 – http://web.amnesty.org/library/print/ENGASA570012001
[7] The people of East Timor went to the polls on 30 August 2001 to elect an 88 member Constituent Assembly. The Fretilin party, East Timor’s largest political party, won 55 of the 88 seats.
[8] Economic, Social and Cultural Rights and Duties are set out in Part II, Title III and include the right to work (s 50), the right to form or join trade unions (s 52), the right to social security and assistance from the State (s 56) and the right to education and culture (s 59)
[9] See section 61 of the Constitution
[10] See section 155 of the Constitution
[11] See section 156(2) of the Constitution
[12] See for example the comments of Suzannah Linton at page 7 of her article, ‘Rising from the Ashes: the Creation of a Viable Criminal Justice System in East Timor’ [2001] MULR 5
[13] Section 164(2) of the Constitution provides that ‘until such time as the Supreme Court of Justice is established and starts its functions all powers conferred on it by the Constitution shall be exercised by the highest judicial instance of the judicial organization existing in East Timor’. This is by implication, a reference to the Court of Appeal.
[14] Four international judges have recently been recruited to work in the district courts, which has contributed to the reduction of the backlog of ordinary criminal cases.
[15] On 14 May 2004, the United Nations Security Council adopted Resolution 1543 (2004), thereby extending the mandate of UNMISET for a further twelve months, with an end date of 20 May 2005. In doing so, the Security Council noted that emerging institutions in East Timor are still in the process of consolidation and that further assistance is required to ensure sustained development and strengthening of key sectors, in particular justice and public administration. The revised mandate identifies support for the public administration and justice system of East Timor and for justice in the area of serious crimes as the first of three priority elements.
[16] See section 15.4 of Regulation 2001/25
[17] Refer Judicial System Monitoring Programme, ‘Dili District Court, Final Report 2003’, Dili, East Timor, November 2003
[18] Judicial System Monitoring Programme, ‘Justice in the Districts’, Dili, East Timor, December 2003, p 56
[19] East Timor is the poorest nation in Asia. Approximately two-thirds to three quarters of its population is engaged in subsistence agriculture. In 2003, its per capita gross domestic product was approximately $478 per year.
[20] One of the criticisms of the East Timorese judicial system is its adoption of the institution of investigating judge. Commentators have observed that the institution has been abandoned by a number of civil law jurisdictions, such as Germany and Italy and has undergone major reform in France.
[21] Note – dissenting judgment of Judge Jacinta Correia da Costa – Judge da Costa found no ambiguity regarding UNTAET’S clear intention to nominate Indonesian law as the applicable subsidiary law and accordingly held that Indonesian law, and not Portugese, should remain the applicable subsidiary law.
[22] For example, Hanjoerg Strohmeyer, who was formerly Deputy Principal Legal Adviser to UNTAET, commented in an article ‘Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor’ UNSW Law Journal (2001) 24(1) 171 at 174 in relation to Regulation 1999/1 that ‘The wording of s 3.1 (the factual statement ‘the laws applied’ is used rather than ‘the applicable laws’) carefully avoids the retroactive legitimization of the Indonesian occupation as a lawful regime in East Timor’.
[23] Article 1 of a Proposed Law of the Republic of East Timor dated 29 July 2003 but with retrospective effect from 20 May 2002 states: ‘It is understood as the law in force in Timor-Leste on 19 May 2002, in terms of article 1 of Law 2/2002 of 7 August, as every Indonesian law which was applied and was ‘de facto’ in force in East Timor, before the 25 October 1999 in terms of UNTAET Regulation 1/1999.
[24] Section 23 of Regulation 2000/11 states: ‘Courts shall provide translation and interpretation services in every case where a party to the proceedings, or a judge, or a witness, or expert witness does not sufficiently speak or understand the language spoken in that court’
[25] To address the acute shortage of interpreters and translators in the justice sector, a training programme for national interpreters and translators was launched in October 2004.
[26] Case number 4/2001, also known as the Lolotoe case.
[27] See for example the observations set out at page 36 of the JSMP Report, Justice in the Districts 2003 (Dili, East Timor, December 2003)
[28] Case number 20/2003 BDC
[29] On 16 November 2004, the Security Council, by its resolution 1573 (2004) extended the mandate of UNMISET for a final six months until 20 May 2005. The Council also decided to maintain UNMISET’s tasks, configuration, and size.
[30] Report S/2004/333
[31] Section 1.3 Regulation 2000/15
[32] ‘Universal jurisdiction’ is defined at section 2.2 of Regulation 2000/15 to mean jurisdiction irrespective of whether: (a) the serious criminal offence was committed within the territory of East Timor; (b) the serious criminal offence was committed by an East Timorese citizen; or (c) the victim of the serious criminal offence was an East Timorese citizen
[33] It is understood that for the period 2002-2003, the SCU operated on an annual budget of approximately 5 million US dollars and employed 111 staff
[34] On 29 November 2004, the SCU filed an indictment charging five people with crimes against humanity for their alleged role in ordering the massacre that took place on the Suai Church compound in September 1999.
[35] Kaer Metin Merah Putih, or KMMP, was formed following the announcement by the Indonesian Government that it would hold a popular consultation for the people of East Timor
[36] The Special Panel comprised Judge Sylver Ntukamazina (Burundi, presiding), Judge Maria Natercia Gusmao Perreira (East Timor) and Judge Benefito Mosso Ramos (Cape Verde)
[37] Sabino Leite succeeded in an application for conditional release, relying on the fact that he had already served two thirds of his sentence in pre-trial detention.
[38] United Nations Security Council Resolution 1319 (2000)
[39] On 1 December 2004, the Special Panel sentenced Marculino Soares, leader of the Besi Merah Putih militia, to fifteen years imprisonment for his role in inciting acts of violence committed at the Carrascalao house.
[40] Members of the Security Council convened at the 5076th Meeting held on 15 November 2004, reported that East Timor has yet to reach the threshold of self-sufficiency. They identified the areas of public administration, finance, banking and justice as being in a state of particular fragility.