04 November 2014

East Timor Government and Parliament fired Judiciary with missile resolution



East Timor Parliament
ETLJB 04/11/2014 - Dili Tempo Semanal- The President of the Court of Appeal has notified Judge Administrators of Districts Courts to not discuss further the Parliament resolution number 11/2014 and more importantly the President of the Court of Appeals has issued a letter ordering the courts not to obey National Parliament Resolution number 11/2014 and Government Resolution number 29/2014, of the 24th/10/2014.

“According to the law, article 18, e) law number 11/2014, 29th of December (regarding estatuto dos Magistrados Judiciais – Status of the Judges) and article 18,  number 2, 26, 41, 55, 60, 72 and 82 from decree law number 19/2012, 25th of April (regarding Court Officials) notifies the Judicial Officers and International Judges to continue with their duties”, The President of the Court of Appeals, Dr. Guilhermino da Silva said in his letter which was also sent to the Parliament and the Government who also tried to invade the judicial area with their resolution 11/2014.

In his letter of 28th/10/2014, Dr. Guilhermino da Silva explained that, only the Superior Council of the Magistracy has the power to choose, transfer or to dismiss Judges, court officers and also to appreciate their professional merits or to take disciplinary actions, therefore the National Parliament Resolution number 11/2014 of the 24th October has no practical effect more so Government Resolution number 29/2014, on the 24th of October 2014”.

Sources in the Court of Appeals told Tempo Semanal that the President of the Court of Appeals received a letter from the Prime Minister in office, asking to have a debate on Television about the matter.

The President of the Court of Appeals who is also the President of the Superior of the Magistracy (KSMJ), has notified all concerned not to implement the resolution from the Government and the President of the Court of Appeals is contesting the said Resolution.

“Timor –Leste can change whoever it wants, or sack anybody because of national interest of this country, we can do everything but it must be according to the constitution and law. Now the resolution says to immediately terminate the Judges and the court Officials within twenty four hours, but for this we need to appreciate the position of Dr. Duarte Tilman whom does not agree with this. This Judge said he does not agree with this because it has to do with firing all this people and then people say Government members, there are a lot of cases, and there will also be accusations of an invasion of the Parliament and Government on the Judiciary”.

Agusto Ximenes, a youth from Bekora; “If it is an official, we can change, if something is wrong here we can change, if human resources is insufficient then we can fix it but it has to follow rules this does not follow rules. The constitutional rules say that only the Superior Council of the Magistracy can replace a judge, sack a judge and select a judge, it is not done with a resolution”, from a member of KAK, CAC (Comisao Anti Corrupcao –KAK): “Sovereignty organ of the Nation of Timor-Leste specially the V Constitutional Government and the National Parliament may have jumped many articles of the RDTL Constitution because it used political missile weapon resolution to squash judicial sovereignty organ in a democratic rule of law TL”.

“The Courts use article 120 of the Constitution which states that the courts shall not apply laws that is against the Constitution and this principle is enshrined in the Constitution. If the court can’t apply the laws that are against the constitution then lets’ not go there with a resolution”, said a defense lawyer to Tempo Semanal.

“For me if the Government and the Parliament use a resolution to fire Judges, Prosecutors, Defense Lawyers and KAK system then it shows clearly that Government and Parliament are starting to disrespect the mechanisms that they set in the constitution specially article 118 and other articles regarding the sovereign judicial organ”, he explained.

“I have said the National Parliament has the power to make laws, to check, to make political decisions, without a doubt. But the laws that are made must not be against the constitution and the principle enshrined in it. If it is against it then Judges must not use it, if they do then that is when everybody runs a mock against the constitution”.

“To stop immediately this then freezes the organs that have the competency to discipline, change, select and to inspect those Judges. Once more to select Judges, replace Judges and to solve these issues is not up to the Parliament through its members, only the Superior Council of Magistracy can, through its members or representatives. When there is no separation of powers then the constitution no longer exists. Without separation of powers there is no constitution” stressed another judicial member.

“To ensure the rule of law it is not just to write it down in paper or in a book to read or to speak with beautiful and colorful words it must be put into practice. It is not only in theory but once it is written down then it must be put into practice. When the courts and judges obey resolution 11/2014 then Timor-Leste becomes a state of power and not a state of law. This means that the Government rules all”.

On the other hand, a Timorese law student who is finishing his laws studies in a University in Dili, said the Government and the National Parliament use their power to make a resolution to violate the constitution and he observed that the Government did not ask the Public Ministry for their views so he questioning why the Government ignored the Public Ministry and trusted international lawyers more and forgot to ask the Public Ministry as the defenders/advocates of the Timor-Leste’s Nation for any legal advice.

“I see that this Government has done its things without dialog with Public Ministry that is why the resolution has gone to the wrong address. The root of the problem is that at times the Public Ministry is not aware of these contracts. The main problem is when the contracts are made. What is wrong is what is in these contracts.  The Government Lawyer does the contracting then does the contract and after blames the Public Ministry”, said law student A. X. da Silva.

FRETILIN Member in Parliament David Mandati Dias Ximenes voted in favor of the 12/2014 resolution regarding the defense of national interest in which empowered the Government to establish a team to negotiate the Timor Sea Boundaries with Australia, but he voted against National Parliament resolution 11/2014 to empower the Government to audit the judicial system in Timor-Leste  saying that he does not agree with NP resolution 11/2014 because it violated the RDTL constitution  specially article 69 of the RDTL constitution were it defines the separation of powers including articles 118, 119, 120. 121 and 128 were it refers to the sovereign judicial organ of RDTL.

“This resolution should have been null and void because on the 24th/10/2014 there was only one agenda and that was to meet with the Prime Minister and there was no other agenda regarding debate or voting this resolution. We the Parliamentarians ourselves are violating our own National Parliament internal regiment,” said David.(end) Source: http://www.temposemanal.com/nasional/government-parliament-fired-judiciary-with-missile-resolution-ksmj-opposes 

See also
Court of Appeal defies East Timor's Parliament resolution to terminate all foreign judges
East Timor's Parliament resolves to terminate all foreign judges
Parliament and Government must respect the independence of the judiciary and separation of powers
Judiciary under attack in East Timor 

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