31 July 2013
JSMP Report on National Seminar on the Right to a Fair Trial and the Right of Appeal in Timor-Leste
On 28 June 2013 JSMP organised a National Seminar on Fair Trial and the Right to Appeal. The seminar was attended by 138 participants including students and representatives of government and non-government organisations.
Summary of Presentations
The morning session included presentations on the current situation and potential challenges to fair trial in Timor-Leste.This session featured:
· Ms Kate Schuetze, Amnesty International who explained the concept of a fair trial and international standards and outlined the importance of ensuring that trials are conducted in accordance with international standards of fairness, independence and impartiality is of fundamental importance to the rule of law with particular reference to the case study of Fiji.
· Dr. Rui Pereira, Deputy Ombudsman of Human Rights and Justice who provided insight into the current situation in Timor-Leste and clarified the role of the Ombudsman for Human Rights and Justice, which is to receive complaints about decisions but not to intervene in judicial decisions and decision-making.
· Sr. Nelinho Vidal, Ministry of Justice who explained the role of the Ministry of Justice in developing the justice sector and supporting the rule of law in Timor-Leste and identified the achievements and future challenges involved in constructing Timor-Leste’s formal justice system.These challenges were identified as the Constitution; lack of coordination within the sector; judicial independence; capacity development; and a lack of community awareness.
· Dr. Cancio Xavier, Public Defender who explained the role of the Public Defender in guaranteeing fair trial and the right to appeal by providing access to justice for the poor.
The afternoon session included presentations on the role of the Appeals Court in guaranteeing a fair trial. This session featured:
· Dr. Cid Geraldo, UNTL who explained the right of appeal in the context of the Constitution and as a component of the fair trial principle.
· Dr. José Ximenes, General Prosecutor who explained the role of the prosecutor in guaranteeing a fair trial as well as the challenges faced by the Prosecutor in fulfilling its institutional functions, in particular constitutional constraints and political interference.
· Sr. Jose Luis de Oliveira, Asian Justice and Rights (AJAR) who discussed problems with political interference in the Appeals Court and identified future challenges including corruption; protection of witnesses; and the exercise of Presidential and government powers.
At the end of each session, participants then had the opportunity to ask a range of question sand raise issues related to the justice sector, to which the presenters responded. Concerns raised by participants included:
· The right of appeal and conduct of the Lucia Lobato trial.
It was generally agreed that all accused persons have the right to appeal and to be treated in a manner that upholds and respects their human rights. It was also agreed that the Lucia Lobato trial highlights the problem of the lack of transparency in the Appeals Court as the decision-making process of the court is confidential and this fuels public dissatisfaction with the judicial system.
· A lack of transparency in the Appeals Court.
It was concluded that the Appeals Court should be more transparent and that the current system of closed hearings is in need of change.As part of ensuring that a fair trial takes place, Judges are required to act in a way that instills public confidence in the process. Hearing appeals behind closed doors restricts the public’s right to information. The only case in which a closed court is acceptable is where there is need for special protection of someone involved in the case.
· Corruption and political intervention in the justice system.
Responses included that to overcome corruption and avoid political interference in judicial decisions, Timor-Leste needs to further develop institutions in line with the doctrine of the separation of powers and there needs to be greater transparency in decision-making.
· A lack of justice for past crimes and human rights abuses.
A variety of related barriers to achieving justice were raised in response including the difficulty of extradition in the absence of an international agreement as well as political considerations such as the desire to preserve Timor-Leste’s relations with Indonesia. Some speakers also suggested that more could be done to seek extradition, in particular when alleged perpetrators are visiting third countries. It was agreed that the best prospect for achieving justice would be through an international court.
· The use of pardons.
The general consensus of presenters that addressed this issue was that pardons need to be granted within a framework that regulates their use in order to ensure that they are not misused by political actors.
· The role of foreign nationals in the justice sector.
Although it was agreed that Timor-Leste’s justice sector has undergone a significant degree of development, it was agreed there remains a continuing need for further assistance to develop local capacity and to ensure the independence and efficacy of the justice sector in the future.
The general consensus emerging from the seminar was that:
· The Appeals Court should operate more transparently and conduct open trials to instill public confidence in the judicial process and ensure that a fair trial has been conducted.
· The composition of the Appeals Court is problematic as appeals are heard and decided by the same pool of judges that hear cases at first instance. A fair trial is more likely to be assured if the panel presiding over an appeal is comprised of different members than those that have heard the matter previously. The introduction of a separate Constitutional Court could therefore be considered.
· All defendants have the right to a fair trial and to have appeals heard in accordance with their rights under the law.
· Political interference in the administration of justice is an impediment to achieving the rule of law.
· Pardons should only be granted in accordance with a formal and transparent process.
·Timor-Leste should continue to seek justice for past crimes and human rights abuses related to the occupation through an international court.
·The justice sector in Timor-Leste has come a long way since independence but there remains a continuing need for further assistance to develop local capacity and to ensure the independence and efficacy of the justice sector.
· Ongoing community education concerning government and court processes is needed to improve public understanding of democracy and Timor-Leste’s institutions. Source: JSMP Press Release 28 June 2013 Edited by Warren L. Wright
ETLJB congratulates JSMP for its continuing and outstanding work in the justice sector in East Timor.