Oxford Human Rights Hub - Alex Wilks* - 25th August 2015
Timor Leste’s stability is under focus following the recent killing by security forces of Mauk Moruk, a long-time opponent of former Prime Minister Xanana Gusmão and leader of a group of disgruntled veterans from its long independence struggle.
In 2002, the birth of Timor Leste as an independent state following the brutal Indonesian occupation grabbed the attention of international media. The United Nations won plaudits for its subsequent peacekeeping and nation-building interventions, but international attention waned after the UN wound up its operations ten years later. Moruk’s killing has shown that huge challenges remain for Timor Leste as it seeks to establish itself as a functioning democracy, and key to this will be the development of its justice system.
.Progress so far has been tough. At the end of last year, Timor Leste experienced a judicial crisis when its Parliament summarily expelled Portuguese contract judges and a prosecutor from the country. It was alleged that they had caused the Government to lose a tax evasion case against American oil giant ConocoPhillips. However, it is widely speculated that the expulsions took place because the judges and the prosecutor in question had launched corruption probes against several prominent public figures. The Portuguese have since been invited back but the stark violation of the Constitution—particularly Section 128, which entrusts the Superior Council of the Judiciary with the management and discipline of judges—demonstrates the fragility of separation of powers and the rule of law in this fledgling nation.
Many problems facing Timor Leste’s nascent justice system are more fundamental than political tensions between the executive and the judiciary. Perhaps the greatest impediment to the delivery of justice is language. Tetum and Portuguese (Timor Leste was a colony of Portugal) are the two official languages. Laws and legal documents are mostly written in Portuguese despite the fact that the overwhelming majority of Timorese do not speak or understand it. Many do not even know Tetum, and identify one of the country’s thirty local languages as their first language. Court proceedings therefore often have to be summarized in a local language and according to one study approximately 30% of the respondents who had been to court did not understand the proceedings because of unfamiliarity with the language. Furthermore, the Tetum translations of many basic laws, especially those relating to criminal procedure and land rights, are simply not available – a situation which violates Section 13 of Timor Leste’s own Constitution as well as international law (for instance, Article 14(3) of the International Covenant on Civil and Political Rights).
Language also poses serious difficulties with respect to the training of desperately-needed Timorese judges, prosecutors, public defenders and lawyers. All the training programmes at the National Legal Training Centre are conducted in Portuguese only, even though on entry many trainees cannot understand or speak it. Therefore trainees have to first learn Portuguese before learning Timorese law in Portuguese, seriously impacting the availability and quality of legal professionals. For example, according to the latest registry of the National Legal Training Centre there are only approximately 80 registered lawyers in a country of over 1 million, with little regulation.
Further issues lie with the legislative framework itself. There are many inconsistencies, gaps and ambiguities, leaving the door open for subjective, opportunistic interpretations and in some cases, corruption. This is partially because the capacity of state institutions remains low and coordination between them, particularly in the drafting and implementation of legislation, is weak. This is exemplified by the fact that, in acknowledgement of the need to address the issue, three separate justice reform commissions have been established in different state institutions—the Ministry of Justice, the Parliament and the Coordination Ministry of State and Social Affairs.
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However, in a country that is barely 13 years old such growing pains are inevitable. There are signs of progress despite the challenges. The most senior Timorese judge, the President of the Court of Appeal, won respect for his strong leadership during the judicial crisis and Timorese prosecutors have demonstrated their independence by courageously initiating corruption investigations against several senior figures, including former Prime Minister and independence hero Gusmão. Enabling legislation to set up Timor Leste’s first national bar association is pending before the next Parliamentary session, which will play a key role in training, administering and regulating the legal profession. Following the extra-judicial killing of one of Timor Leste’s main opposition figures, such steps will be fundamental in building an effective and accountable justice system, as well as increasing public confidence in it.
* Alex Wilks is a UK-qualified lawyer with a wide range of experience in rule of law and human rights work. He is the Principal Programme Lawyer at the International Bar Association's Human Rights Institute where he runs various programmes in Latin America, South Asia and MENA.
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Timor Leste’s stability is under focus following the recent killing by security forces of Mauk Moruk, a long-time opponent of former Prime Minister Xanana Gusmão and leader of a group of disgruntled veterans from its long independence struggle.
In 2002, the birth of Timor Leste as an independent state following the brutal Indonesian occupation grabbed the attention of international media. The United Nations won plaudits for its subsequent peacekeeping and nation-building interventions, but international attention waned after the UN wound up its operations ten years later. Moruk’s killing has shown that huge challenges remain for Timor Leste as it seeks to establish itself as a functioning democracy, and key to this will be the development of its justice system.
.Progress so far has been tough. At the end of last year, Timor Leste experienced a judicial crisis when its Parliament summarily expelled Portuguese contract judges and a prosecutor from the country. It was alleged that they had caused the Government to lose a tax evasion case against American oil giant ConocoPhillips. However, it is widely speculated that the expulsions took place because the judges and the prosecutor in question had launched corruption probes against several prominent public figures. The Portuguese have since been invited back but the stark violation of the Constitution—particularly Section 128, which entrusts the Superior Council of the Judiciary with the management and discipline of judges—demonstrates the fragility of separation of powers and the rule of law in this fledgling nation.
Many problems facing Timor Leste’s nascent justice system are more fundamental than political tensions between the executive and the judiciary. Perhaps the greatest impediment to the delivery of justice is language. Tetum and Portuguese (Timor Leste was a colony of Portugal) are the two official languages. Laws and legal documents are mostly written in Portuguese despite the fact that the overwhelming majority of Timorese do not speak or understand it. Many do not even know Tetum, and identify one of the country’s thirty local languages as their first language. Court proceedings therefore often have to be summarized in a local language and according to one study approximately 30% of the respondents who had been to court did not understand the proceedings because of unfamiliarity with the language. Furthermore, the Tetum translations of many basic laws, especially those relating to criminal procedure and land rights, are simply not available – a situation which violates Section 13 of Timor Leste’s own Constitution as well as international law (for instance, Article 14(3) of the International Covenant on Civil and Political Rights).
Language also poses serious difficulties with respect to the training of desperately-needed Timorese judges, prosecutors, public defenders and lawyers. All the training programmes at the National Legal Training Centre are conducted in Portuguese only, even though on entry many trainees cannot understand or speak it. Therefore trainees have to first learn Portuguese before learning Timorese law in Portuguese, seriously impacting the availability and quality of legal professionals. For example, according to the latest registry of the National Legal Training Centre there are only approximately 80 registered lawyers in a country of over 1 million, with little regulation.
Further issues lie with the legislative framework itself. There are many inconsistencies, gaps and ambiguities, leaving the door open for subjective, opportunistic interpretations and in some cases, corruption. This is partially because the capacity of state institutions remains low and coordination between them, particularly in the drafting and implementation of legislation, is weak. This is exemplified by the fact that, in acknowledgement of the need to address the issue, three separate justice reform commissions have been established in different state institutions—the Ministry of Justice, the Parliament and the Coordination Ministry of State and Social Affairs.
.
However, in a country that is barely 13 years old such growing pains are inevitable. There are signs of progress despite the challenges. The most senior Timorese judge, the President of the Court of Appeal, won respect for his strong leadership during the judicial crisis and Timorese prosecutors have demonstrated their independence by courageously initiating corruption investigations against several senior figures, including former Prime Minister and independence hero Gusmão. Enabling legislation to set up Timor Leste’s first national bar association is pending before the next Parliamentary session, which will play a key role in training, administering and regulating the legal profession. Following the extra-judicial killing of one of Timor Leste’s main opposition figures, such steps will be fundamental in building an effective and accountable justice system, as well as increasing public confidence in it.
* Alex Wilks is a UK-qualified lawyer with a wide range of experience in rule of law and human rights work. He is the Principal Programme Lawyer at the International Bar Association's Human Rights Institute where he runs various programmes in Latin America, South Asia and MENA.
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