30 June 2018

JSMP: VIII Constitutional Government must ensure and promote good governance

JSMP calls on new East Timorese government to ensure good governance. East Timor Law & Justice Bulletin
JSMP Press Release28 June 2018

Eighth Constitutional Government must ensure and promote good governance

The Eighth Constitutional Government must ensure “good governance” and “clean governance” which was an electoral promise made by all political parties to promote their governance once they were in power.

A key element of good and clean governance is the credibility and integrity of public servants in these positions. This will strengthen public confidence in State institutions, and will increase the quality of public service provision and will bring prosperity to the people.

JSMP has carefully observed debate and criticism of the decision made by the President of the Republic, Francisco Gutteres, Lu-Olo, who asked the Prime Minister of the Eighth Constitutional Government, Taur Matan Ruak, to reconsider some prospective members of the Government who did not take part in the swearing-in ceremony on 22 June 2018, because they are being processed or facing judicial proceedings.

29 June 2018

Posts on ETLJB June 2018

Perversion of the rule of law in Timor-Leste and its impact on State Legitimacy - "Is this what 200,000 of our fellow citizens died for?"

Impunity in East Timor impacts State legitimacy and erodes the rule of law and judicial independence. Warren Leslie Wright
Arte Moris Santa Cruz Massacre 1991
NOTE REPUBLICATION OF 2012 ARTICLE 

What do our ancestors think of us? Do they smile with pride, or do they cry with shame? Is this what 200,000 of our fellow citizens died for?

The rule of law is an indispensable concept of democracy. Without it, democracy does not exist and a state based on the will of those who wield political, social and economic power emerges, to the great detriment of the masses who are then subject to the arbitrary self-interests of the powerful, no longer accountable under the law.

During the Indonesian occupation, which was essentially an illegal military occupation - a genocide, no less - there was, as there are in all states of martial law, a displacement of the rule of law by the rule of state violence. Uncountable violations of the municipal criminal (and civil) law, innumerable violations of the most basic of human rights, the right to life, the right to a fair trial, the right to freedom of peaceful assembly, among others, were and remain, unpunished.

27 June 2018

The Rule of Law in East Timor: Death by a Thousand Cuts

Warren Leslie Wright discusses the rule of law in East Timor and fundamental problems in regard thereto.
Arte Moris Image c wlw2006
NOTE: REPUBLICATION OF ORIGINAL ARTICLE ETLJB 09/03/2010 The Rule of Law in East Timor: Death by a Thousand Cuts - Following a long and arduous trial, the Court has pronounced its judgement  in the trial of rebel soldiers who deserted the East Timor Defence Force (Falintil-FDTL) and, so it has been found, subsequently attempted the overthrow of the country’s highest political leaders on 11 February 2008 through a conspiracy to murder them.

The rebel soldiers had been led by one F-FDTL Major Alfredo Reinado who was shot to death at close range in the grounds of the Presidential residence compound during the chaos of that day. After his death, his deputy, Gastao Salsinha, took over until they were convinced to surrender in April 2008.

The rebels were convicted by the Dili District Court of serious crimes including subversion against the Timorese state as well as attempted murder and conspiracy to murder. Reinado’s partner at the time of the apparent attacks on Timor’s President and Prime Minister, Angelita Pires, was acquitted of all charges.

Doubts remain about exactly what happened and who planned the events on that day but the Court has made it's decision and has found numerous and grave violations of the law by the former soldiers. The seriousness of the charges is reflected in the heavy prison terms imposed on the convicted.

East Timor : Language and The Law

East Timor Law & Justice Bulletin Language and the Law in East Timor by Warren L. Wright
Image front page East Timor Government Gazette
Original Citation: 2009 ETLJ 9 

Introduction
Legal information on East Timor is difficult to find even on the web. There are hardly any East Timor law-dedicated sites even though it has been 6 years since East Timor won its independence. The other problem is that even when access to East Timor legislation is found, new laws are issued by the East Timor Parliament and the Government only in the Portuguese language which hardly anyone in East Timor can understand. Although Portuguese is spoken by many people (for example, in Brazil and Portugal), the distribution of this language throughout the world is also very limited.

Language of the Law and the Rule of Law
The language issue presents serious problems for the whole idea of the rule of law in East Timor: How can citizens be expected to comply with law that can not be read by the ordinary person? Even lawyers have difficulty interpreting law when they know the language in which the law has been drafted. It is incomprehensible that a government in any country would issue laws in a language that is not understood by its citizens and the East Timor government needs to review this policy.

This also presents problems not just for the citizens but also for the police and private lawyers trying to advise their clients about their legal rights and obligations. Again, hardly any of the police in East Timor understand Portuguese so how can they enforce the law properly? Similarly, the private lawyers in East Timor were nearly all educated in Indonesian law schools and have never learnt Portuguese so they also encounter grave difficulties in advising and representing citizens charged with criminal offences.

How can we speak of the efficacious rule of law in East Timor in these circumstances?

25 June 2018

JSMP: Sumáriu Kazu Tribunál Distritál Oekusi Períodu Abril 2018

East Timor Law & Justice Bulletin Timor-Leste Court Reports Tribunal Distriral Oekusi
Sumáriu Kazu Tribunál Distritál Oekusi Períodu Abril 2018 Deskripsaun sumáriu julgamentu ba desizaun kazu sira

1. Krime ofensa ba integridade fízika simples

Nú. Prosesun: 0154/17.OESIC

Kompozisaun Tribunál : Singulár

Juis : Dr. João Ribeiro

Prokuradór  : Dr. Mateus Nesi

Defeza : Dr. Calisto Tout : Dr. Inacio Quebo & Dr. Filipe Landos (Advogado Estajiáriu)

Tipu pena                                : Pena prizaun tinan 1 suspende ba tinan 1

Iha 02 Abril 2018, Tribunál Distritál Oekusi prezide julgamentu leitura sentensa ba krime ofensa ba integridade fízika simples ne’ebé envolve arguidu Anselmo Suni hasoru lezada Rosina Teme, (nu’udar viziñu) iha Suku Costa, Sub-distrito Pante-makassar, Distritu Oekusi.

Akuzasaun Prokuradór

Prokuradór akuza katak iha 14 Agostu 2017, maisumenus iha tuku 08.00 dadeer, arguidu ho lezada diskuti malu kona-ba fahe bee ba toos hodi rega malus ne’ebé arguidu ho lezada kuda iha ida-idak nia toos. Arguidu basa dala 2 iha lezada nia oin no tebe dala 2 iha lezada nia kanotak parte loos no rezulta lezada sofre moras. Kazu ne’e anexa mós ho relatóriu médiku husi Ospital Referal Oekusi no fotografia husi Polisia-VPU.

Prokuradór akuza arguidu kontra artigu 145 Kódigu Penál (KP) kona-ba ofensa ba integridade fízika simples ho moldura penál to’o tinan 3 ka multa.

Produsaun ba prova

JSMP: Sumáriu Kazu Tribunál Distritál Baucau Edisaun Abril 2018

East Timor Court Reports East Timor Law & Justice Bulletin Warren Leslie Wright
Sumáriu Kazu Tribunál Distritál Baucau Edisaun Abril  2018 Deskripsaun sumáriu ba desizaun kazu sira ne’ebé JSMP monitoriza:


1. Krime ofensa ba integridade fízika simples ho natureza violénsia doméstika 

Nú. Prosesu                             : 0082/17. CBCV

Kompozisaun Tribunál : Singulár

Juis : Dr. Jose Quintão

Prokuradór : Dr. Gustavo Agostu M da Silva

Defeza : Dr. Sidonio M. Sarmento

Tipu pena : Pena multa

Iha 2 Abril 2018, Tribunál Distritál Baucau prezide julgamentu leitura sentensa ba krime ofensa ba integridade fizika simples ho natureza violénsia doméstika ne’ebé envolve arguidu MMB hasoru nia feen, iha Distritu Baucau.

Akuzasaun Prokuradór
Prokuradór akuza katak iha 22 Novembru 2017, iha tuku 16.30 lokraik, arguidu foti ai-sanak  baku dala 2 iha lezada nia liman sikun, baku dala 1 iha lezada nia-ain tuur no rezulta lezada sofre moras no bubu iha lezada nia liman sikun no ain-tuur.

JSMP: Sumáriu Kazu Tribunál Distritál Suai Periódu Abril 2018

JSMP East Timor Court Reports ETLJB
JSMP Sumáriu Kazu Tribunál Distritál Suai Periódu Abril 2018

Deskripsaun sumáriu ba desizaun kazu sira

1.      Krime maus-tratus ba kónjuje

Prosesu : 0008/17.MFMFI

Kompozisaun tribunál : Koletivu

Juis : Dr. Argentino Luisa Nunes, Dr. Benjamin Barros no Dr. Âlvaro Maria Freitas

Prokuradór  : Dr. Matias Soares

Defeza : Dr. Albino de Jesus Pereira

Tipu pena  : Pena prizaun tinan 3 fulan 6

Iha 04 Abril 2018, Tribunál Distritál Suai prezide julgamentu leitura akordaun ba krime maus-tratus ba kónjuje ne’ebé envolve arguidu ZPM hasoru nia feen, iha Distritu Manufahi.

Akuzasaun Prokuradór

Prokuradór akuza katak iha 09 Jullu 2017, arguidu ho lezada fila hosi lezada nia inan aman sira maibé haluha lori foos karon ida-ne’ebé lezada nia inan aman fó ba sira. Tanba ne’e, lezada haruka arguidu fila fali ba foti maibé arguidu lakohi nune’e sira diskute malu no tolok malu to’o iha uma no arguidu tuku dala barak iha lezada nia isin lolon, ulun, kanuruk, kabun no kotuk laran. Lezada tenta halai hodi salva-an tanba iha momentu ne’ebá lezada ho kondisaun isin rua. Maibé arguidu foti tudik ida hosi pasta laran ho medida sentimetru 40 no hateten ba lezada dehan katak se lezada halai nia sei mate.

24 June 2018

JSMP held a regional workshop on the role of the National Parliament and Judicial Actors within the Timor-Leste Formal Justice System

Report on the workshop of the role of the National Parliament and judicial actors in Timor-Leste. Warren L. Wright BA LLB
Press Release Dili Regional Workshop Dili, 18 June 2018 - On 8 June 2018 JSMP held a regional workshop in Dili on "The Role of the National Parliament and Judicial Actors within the Timor-Leste Formal Justice System."  This workshop started with a JSMP presentation on its findings regarding the National Parliament and the functioning of the justice sector during 2017. JSMP appreciated the participation of representatives of the National Parliament and judicial actors who were present to hear JSMP's observations and findings.

"These sessions are important because they can facilitate interaction and contact between community representatives and members of parliament and judicial actors who can convey their concerns and expectations directly to the competent authorities who make State policy, as well as the judicial actors who administer justice", said the Executive Director of JSMP, Luis de Oliveira Sampaio.

This forum was the appropriate and relevant space for sub-village chiefs, village chiefs, and members of village administration and minority groups in society because they were are able to convey their difficulties, social problems and challenges and hear from the authorities about considerations in formulating State policies", he added.

The participants raised issues such as procedures for the adoption of children, people occupying land without complying with court decisions and not wanting to move off the land even though a court decision had been handed down, the announcement of court decisions that were not attended by the parties, also case management at the Public Prosecution Service performed by court clerks who are supposed to keep the parties updated, and the difference between the role of public defenders and private lawyers in terms of providing legal aid to the community.

Also the participants asked MP Arão, as the Coordinator of AMP, about a lack of facilities at the village level, incentives paid to delegates and leaders, which are unfair according to the labour code, the role of oversight performed by the National Parliament regarding projects, access of the LGBT community to education and health, as they often experience discrimination and also a request to create a specific law to deal with the rights of the LGBT community in the future.

In relation to these questions MP Arao Noe explained that there was a plan to increase incentives given to village delegates, but the 2017 elections turned out differently, so the AMP Government is tasked with solving this issue. MP Arão Noe also stated that they will continue to provide oversight because it is the role of members of parliament to supervise road projects based on the AMP plan which will continue to focus on administrative posts during the 5 year reign of AMP.

Also in relation to the LGBT community, member of parliament expressed regret towards discrimination in service provision, and requested for officials from State institutions to be sanctioned if they practice discrimination in service provision to members of the LGBT community. He also said that there is a possibility in the future to consider the creation of a specific law for the LGBT community, but he emphasised that the Constitution guarantees that all citizens have the same rights to access any opportunity within State institutions.

The Judge Administrator of the Dili District Court explained that in semi-public cases the victim has more legitimacy to initiate proceedings or to make complaints to police authorities or the Public Prosecution Service. In relation to decisions issued by judges in land disputes that have the full force of the law, the parties are obliged to accept these decisions. When the courts have handed down a definite decision and the parties do not accept it, the police will use legitimate force to execute the decision. Also regarding rights of an adopted child and a biological child the judge stated that they have the same rights when granted legitimacy by the court.

On the issue of case management at the Public Prosecution Service, the Chief Prosecutor of Dili District explained that when a case has been archived it doesn't mean that it has been shut. There are two ways to archive a case, one is where it is completely archived and the other is partial. Completely archiving a case means that there are insufficient indications of a crime; if the perpetrator is unknown; and if law does not allow for criminal proceedings. Meanwhile partially archiving a case means that there is a possibility to process the case if new evidence is found to reinforce the position. Therefore he asked the parties to seek a clear explanation in such cases from court clerks at the Public Prosecution Service. Also, he said that previously to adopt a child a person must go through the courts to gain legitimacy so that all circumstances can be considered to decide if the person performing the adoption is suitable and if no problems will arise after the adoption.

In relation to the different roles performed by public defenders and private lawyers the Coordinator of the Office of the Public Defender stated that the main role of the public defender is to provide legal aid to the vulnerable without receiving money from any person whilst providing advocacy because their salary is provided by the State. This is not the same with private lawyers who have the same role of providing legal aid in accordance with the law, because they receive money from their clients because they perform their work using their own money.

The participants included village chiefs, sub-village chiefs and members of some village councils from villages where JSMP previously organized workshop activities including members of the LGBT (Lesbian, Gay, Bisexual no Transgender) community in Dili. These representatives comprised 15 individuals from Lihu Village, Railaco Administrative Post, Ermera Municipality, Beloi Village, Atauro Administrative Post, Dili Municipality, Hatukesi Village Liquica Administrative Post, Liquica Municipality, as well as 5 representatives from the LGBT community in Dili. There were 20 participants in total.

The speakers at this workshop included representatives of the National Parliament and court actors from the Dili District Court, namely MP Arão Noe de Jesus Amarál, Judge Administrator of the Dili District Court, Jose Maria de Araújo, who spoke about the role of the court in the Timor-Leste formal justice system and the Public Prosecution Service was represented by Alfonso Lopez who spoke about the role of the public prosecution service and challenges. Meanwhile the Office of the Public Defender was represented by Sergio Hornai, who spoke about the role of this office in providing legal aid to the vulnerable in accordance with the Constitution and the law.

This program was made possible due to the financial support of the Australian Government through the Australian Embassy in Timor-Leste.

JSMP Case Summary Baucau District Court April 2018

East Timor Law & Justice Bulletin joins with JSMP in condemning violence of all kinds. Warren Leslie Wright
A.    Summary of the trial process at the Baucau District Court

1.      Total number of cases monitored by JSMP: 37

 B.  Descriptive summary of the decision handed down in cases that were monitored by JSMP:


1.      Crime of simple offences against physical integrity characterized as domestic violence   

20 June 2018

Elected MPs of the fifth legislature need to develop the National Legislative Program to guarantee the legislative priorities of the National Parliament and immediately approve the Draft Law Against Corruption

East Timor Law & Justice Bulletin Timor-Leste National Parliament Call to enact anticorruption law. Warren Leslie Wright
The East Timor National Parliament
JSMP Press Release National Parliament 18 June 2018 Elected MPs of the fifth legislature need to develop the National Legislative Program to guarantee the legislative priorities of the National Parliament and immediately approve the Draft Law Against Corruption

JSMP requests for the elected MPs of the fifth legislature, who were sworn in on 13 June 2018, to develop the national legislative program and ensure legislative priorities for the next five years and to immediately approve the Draft Law Against Corruption without unnecessary delay.

Jose Maria Vasconcelos (Taur Matan Ruak) appointed Prime Minister of East Timor

"In the wake of the destruction of the rule of law in East Timor in 2006, the United Nations....made recommendations for the prosecution of numerous persons, including the Chief of the Falintil-East Timor Defence Force, Brigadier General Taur Matan Ruak" Wright, W

Former East Timor Defence Force Chief and former president Taur Matan Ruak has been announced as the new Prime Minister, five weeks after the Alliance of Progress and Change coalition won an overwhelming majority of 43 in the nation’s 65 seat legislature.

The fallen FRETILIN minority government, a government that enlivened the problems with Article 106 of the Constitution and which ultimately caused its downfall, was unable to pass any legislation through the Parliament.

Congratulations are due to both the Alliance and Maun Bo'ot Taur Matan Ruak, as well as the East Timorese people whose understanding of democracy is far more profound than their leaders.

17 June 2018

On the extinction of Portuguese colonial land rights in East Timor

Introduction and Background
Paragraph 4 of the General Elucidation of Law No 7 of 1976 on the Legalisation of the Unification of East Timor into the Unitary Republic of Indonesia states that, upon integration, the People of East Timor become People and Citizens of Indonesia and all legislation of Indonesia applies in the territory of East Timor.

One law of Indonesia is the Basic Agrarian Law of 1960 (Law No 5 of 1960 on the Basic Principles of Agrarian Affairs – hereafter “the Basic Agrarian Law”). The main intent of the Basic Agrarian Law was to abolish the Dutch colonial land law which had continued to operate in Indonesia since independence in 1942 and to replace it with Indonesia’s own national land law. It repealed all of the principle Dutch land law and all of the provisions of Book Two of the Civil Code “insofar as [they] pertain to soil, water, and the natural resources contained therein, with the exception of the provisions concerning hypotheek (mortgage) which are still effective at the time this act comes into effect”.


13 June 2018

JSMP Presents Findings on the Development of the Legislative and Justice Sector in Timor-Leste

East Timor Law & Justice Bulletin ETLJB Legal news from East Timor in English. warren l wright
JUDICIAL SYSTEM MONITORING PROGRAMME Press release Regional Seminar 4 June 2018

JSMP presented its findings on the development of the legislative and justice sector in a regional seminar in Suai on the role of the National Parliament and the formal justice system

JSMP presented its findings on the development of the legislative and justice sector in a regional seminar in Suai on the role of the National Parliament and the formal justice system that took place on 23 May 2018 in Covalima Municipality.

This seminar was aimed at facilitating contact and direct interaction between members of the village councils and members of the Lesbian, Gay, Bisexual & Transgender (LGBT) community with judicial actors to increase their knowledge about issues that members of this community have faced, as compiled through training previously provided by JSMP.

"This seminar was really important for members of the village councils and members of the LGBT community because they can increase their knowledge about democracy, the role of sovereign bodies, the role of judicial actors and how to bring cases to the courts, because they were given an opportunity to interact and convey their concerns directly to judicial authorities", said the Executive Director of JSMP, Luis de Oliveira Sampaio.

This seminar started with a JSMP presentation about facts and findings that JSMP has compiled to date at the National Parliament, the district courts and the Court of Appeal.  This included underlining the issue of often failing to establish a quorum in the plenary or Committees because of problems with the punctuality of members of parliament, as they are absent without justification, moving around or holding their own discussions during plenary meetings as well as the productivity of the legislative process. In addition JSMP also assessed changes that occurred in 2017 in regards to the high productivity of the National Parliament and also the implications of the political impasse on the functioning of the National Parliament.

Also, in relation to the justice sector, JSMP continues to highlight issues on the inconsistent application of penalties in cases of domestic violence and sexual violence, the need to apply rules of conduct in cases of gender based violence, cases involving minors, problems with the application of the Law on Witness Protection in complex cases, access to trials at the Court of Appeal whereby the court often only engages in deliberation and does not hold hearings/trials open to the public, and political intervention in the judicial sector affecting the principles of judicial independence and separation of powers provided for in the RDTL Constitution.

Meanwhile, issues raised by participants related to procedures for divorce, moving another person's boundary and animals entering another person's plantation and cutting down/destroying another person's plants/crops, use of social media that can harm minors through Face book, stealing another person's animal, as well as the application of Law on Witness Protection that does not give citizens confidence in appearing as a witness because they can end up being a suspect in a case.

Participants also questioned a rape case at the Suai District Court where a decision was handed down one year ago but until now the defendant has not yet complied with the decision (the defendant is still at liberty).

The Judge Administrator of the Suai District Court, Alvaro Maria Freitas, explained that these issues discovered by JSMP have been considered by the courts and the courts have requested for JSMP to continue monitoring to provide information to court actors so they can improve the quality of work performed at the courts in the future. Mr. Freitas said that JSMP is an independent and credible institution and provides criticism based on the real circumstances in the courts. He also further emphasised that to improve the work of the courts it is necessary to have monitoring by independent institutions such as JSMP so that court actors can work better in the future.

Also in relation to the issue of divorce he stated that divorce can occur when there is no other option to maintain a relationship. An issue that the courts face is how to ensure that property is divided equally between the parties as well as parental responsibility for children. Cases involving the crime of theft or larceny need to be based on strong evidence to prove and convince the court that a buffalo or animal belongs to a particular person, or otherwise the court will acquit. Also, damaging a person's plants/crops is a crime of complaint and the local authorities can resolve these matters at the community level, however it is important not to undermine anybody's rights. Meanwhile in relation to the rape case where the penalty has not yet been executed the judge requested for the parties to review the appeal process taking place in Dili.

The Chief Prosecutor of Suai District, Matias Soares, responded that in relation to the Law on Witness Protection, pursuant to Article 119 of the Criminal Procedure Code, a witness is enquired about the facts of which he or she may be directly aware and constitutes elements of proof. He emphasised that subsection 4 of Article 120 will not be applied, namely the deposition by a person who refuses or is not in a position to indicate the person or the source whereby he or she has become acquainted with the facts shall not serve as evidence. He emphasised that a person should not be afraid of appearing as a witness to facilitate proceedings because prior to making a statement the person takes an oath to ensure that the information provided is based on facts that the witness may be directly aware of.

Regarding the issue of criminal matters being dealt with swiftly but civil cases taking a long time, Manuel Amarál, who is the Coordinator of the Suai District Office of the Public Defender, said that criminal proceedings are swift because criminal cases normally have a direct link to the public interest and need to be dealt with urgently, for example a person who is in pre-trial detention must be given priority. Meanwhile civil cases have a different nature and scope and are considered as individual disputes and involve personal relations between the parties and for this reason civil cases take a long time.

01 June 2018

Court of Appeal Confirms Election Results, Fretilin's Appeal Dismissed

The East Timor Court of Appeal Tribunal de Recurso on East Timor Law and Justice Bulletin Warren Leslie Wright Lawyer
ETLJB - The East Timor Court of Appeal has validated the results of the 2018 Parliamentary election.

Judge Deolindo dos Santos, president of the Court of Appeal, read the ruling signed by the judges' panel, constituted by Judge Guilhermino da Silva and Judge Jacinta Correia da Costa, that confirmed and validated the national tabulation conducted by the National Electoral Commission.

In delivering the Court's judgement, the country's most senior judge stated that:

 "The collective of judges decides to judge valid the elections to the National Parliament held on May 12, 2018 and definitive results ascertained and are now proclaimed by the president of the Court of Appeal."

The National Parliament will be constituted by 34 deputies from AMP, 23 deputies from the Independent East Timor ​​Revolutionary Front, 5 from the Democratic Party (PD) and 3 from the Democratic Development Front (FDD), a coalition of several parties.

The provisional clearance had been the subject of an appeal by the Revolutionary Front of Independent East Timor (Fretilin) ​​party, the second most voted political force, which was dismissed as unfounded.

With the validation of the results, which will now be published in the Official Gazette, the way is open for the President of the Republic Francisco Guterres Lu-Olo summon the parties for the formation of Government.

A 65-member inauguration session may also be convened, due to take place between June 5 and 7, which will mark the start of the 5th parliamentary term.

After that, the VIII Constitutional Government, which must then have its program and organic law and, later, the General State Budget for 2018, passed by Parliament, must be sworn in.


East Timor 2018 Parliamentary Election Results

2018 Election: Fretilin falls, again; Xanana resurrects
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