31 July 2018

Catatan tentang "komentar yang tidak konstruktif dan tidak bertanggung jawab" atas Undang-Undang Dasar Timor Leste

"Ini adalah tanggung jawab ahli hukum (bukan intervensi yang tidak bertanggung jawab) untuk mengidentifikasi dan menggambarkan pertanyaan-pertanyaan konstitusional dari perspektif seorang ahli teori demokrasi dan hukum."

 PERINGATAN: TERJEMAHAN INI HASIL GOOGLE TRANSLATE yang deperbaiki oleh manusia Inilah ekstrak artikel yang diterbitkan La'o Hamutuk, yang menyerang pekerjaan analitis saya pada ketentuan Konstitusi.

Berikut adalah proposisi problematis: Bahwa artikel yang saya tulis berjudul "Presiden Timor Lorosa'e Lu-Olo mendiskreditkan Kantor Presiden & Merusak Kehendak Rakyat" adalah "komentar yang tidak konstruktif dan tidak bertanggung jawab."

Ia mengatakan bahwa artikel saya "membayangi Presiden Lu Olo dengan tuduhan sensasional penyalahgunaan konstitusional".

Akademisi Australia terkenal lainnya mengatakan dia tidak setuju dengan saya karena "ada banyak perdebatan tentang kualitas Menteri di Ibukota Timor Lorosa'e, Dili."

Kedua proposisi ini tentu saja merupakan latihan dalam ketidakjelasan dan kebingungan dari pertanyaan-pertanyaan yurisprudensi sentral yang saya menjelaskan. Keduanya tidak mampu merespons secara substantif terhadap masalah hukum yang dipertanyakan.

Tidak satu pun dari kritik ini yang mengedepankan pembenaran apapun untuk proposisi mereka sama sekali dan tidak berusaha untuk menjawab pertanyaan substansial tentang implementasi Konstitusi. Argumen-argumen yang diuraikan dalam artikel saya (dan dalam artikel berikutnya "Timor Leste: Mengenai Kekuasaan Konstitusional Presiden pada Pencalonan oleh Perdana Menteri") berusaha untuk menjelaskan analisis yurisprudensial dari sebuah Konstitusi.

Tidak apa apa yang Konstitusi tersayang diuraikan begitu.

Ini adalah tanggung jawab ahli hukum (bukan intervensi yang tidak bertanggung jawab) untuk mengidentifikasi dan menggambarkan pertanyaan-pertanyaan konstitusional dari perspektif seorang ahli teori demokrasi dan hukum.

Tidak ada komentator yang mengedepankan pembenaran apapun atas apa yang telah dilakukan oleh Presiden. Tampaknya apa yang telah dilakukannya tidak boleh dikritik. Atau tidak bermasalah atau merupakan fenomena yang diterima secara sosial, terlepas dari Konstitusi.

Kata-kata Konstitusi berdiri.

Adapun Lu-Olo yang kejam, tidak ada konsekuensinya adalah Lu-Olo; kita telah menyaksikan pelanggaran dasar-dasar hukum dan perilaku inkonstitusional berkali-kali oleh semua pemain.

Mengapa pandangan tertentu menyatakan bahwa mereka yang membela demokrasi ketika diserang harus tetap diam? Karena menunjukkan kebenaran tidak bisa ditoleransi. Dan menyetujui inkonstitusionalitas adalah sesuatu yang harus dimajukan? Omong kosong apa.

Pengamatan penulis artikel La'o Hamutuk adalah sensor tersembunyi. Latihan tanpa arti yang tidak memberikan cahaya pada isu-isu kausal pemerintahan yang tidak stabil walaupun sudah ada kemenangan pemilu yang luar biasa.

Pada akhirnya, observasi semacam itu berusaha untuk mendistorsi kenyataan kejam yang dihadapi penduduk sampai kesehatannya sangat rentan oleh tindakan inkonstitusional yang telah saya soroti.

Bukan tindakan sepihak orang asing (bule) tetapi perilaku bermasalah dari kaum revolusioner yang gagal menyatukan faksi perang ke dalam pemerintahan demokratis yang bertanggung jawab dan masalah - sampai darah dan mayat di jalanan Dili - yang berdampak kepala masyarakat yang seharusnya menjadi fokus utama organisasi masyarakat di Timor Leste, daripada meluncurkan serangan sensasional terhadap penulis yang berusaha untuk menjelaskan hukum dan demokrasi kepada mereka yang tampaknya tidak menyadarinya.

Original English version
Portuguese Version

Uma nota sobre "comentários não construtivos e irresponsáveis" sobre a Constituição de Timor-Leste

WARNING MACHINE TRANSLATION OF ORIGINAL ENGLISH If you can improve this translation, please paste it in a comment. Muito obrigadu.

Segue-se um excerto de um artigo publicado por La'o Hamutuk, que ataca o meu trabalho analítico sobre as disposições da Constituição.

Eis a proposição problemática: Que um artigo que escrevi intitulado Presidente do Timor Leste, Lu-Olo, desacredita o Gabinete do Presidente e Perverte a Vontade do Povo é "comentário construtivo e irresponsável".

Diz que meu artigo "critica o presidente Lu Olo com acusações sensacionais de abuso constitucional".

Outro conhecido acadêmico australiano me disse que ela tem que discordar de mim porque "há muito debate sobre a qualidade dos ministros". Ambas as proposições, é claro, são exercícios de obscurantismo e obscurecimento das questões jurisprudenciais centrais que tenho buscado elucidar.

Ambos são incapazes de responder de maneira substantiva às questões legais em questão.

 Nenhuma dessas críticas apresentou qualquer justificativa para suas proposições, nem procurou abordar a questão bastante substancial da implementação da Constituição.

Os argumentos elucidados em meu artigo (e em um artigo subseqüente, Timor Leste: Sobre os Poderes Constitucionais do Presidente em Nomeações pelo Primeiro Ministro de Ministros de Estado) buscam elucidar a análise jurisprudencial de uma Constituição.

Não me importa quem tenha a Constituição sob escrutínio. É a responsabilidade dos juristas (e não uma intervenção irresponsável) identificar e descrever questões constitucionais na perspectiva de um teórico democrático e legal.

Nenhum comentarista apresentou qualquer justificativa para o que o Presidente fez. Parece que o que ele fez está além da crítica. Ou não é problemático ou é um fenômeno socialmente aceitável, não obstante a Constituição.

As palavras da Constituição permanecem.

Quanto a lambasting Lu-Olo, não é de nenhuma importância que seja Lu-Olo; temos testemunhado o desrespeito do estado de direito e da conduta inconstitucional muitas vezes por todos os jogadores.

Por que certos pontos de vista sustentam que aqueles que defendem a democracia quando estão sob ataque devem permanecer em silêncio? Porque apontar a verdade é intolerável. E aceitar a inconstitucionalidade é algo que deve ser avançado? Que absurdo.

As observações do escritor do artigo de La'o Hamutuk são censura insidiosa. Um exercício inútil que não lança luz sobre as questões causais do governo instável diante de uma esmagadora vitória eleitoral. No final, tais observações procuram distorcer a cruel realidade de uma população cuja própria saúde é vulnerável por ações inconstitucionais que eu destaquei.

Não são tanto as acções unilaterais dos forasteiros, mas os comportamentos problemáticos dos homens e mulheres que falharam na transição das facções de guerra para uma política democrática responsável e as questões - a ponto de sangue e corpos nas ruas de Dili - que impactam a cabeça das pessoas que deveria ser o foco central das organizações municipais da sociedade civil em Timor-Leste, em vez de lançar ataques sensacionalistas a autores que buscam elucidar a lei e a democracia àqueles que aparentemente não percebem.

Original English Version
Indonesian Version

A note on "unconstructive and irresponsible commentary" on the Constitution of East Timor

"It is the jurist's responsibility (rather than an irresponsible intervention) to identify and describe constitutional questions from the perspective of a democratic and legal theorist."

There follows an extract from an article published by La'o Hamutuk, that attacks my analytical work on the provisions of the Constitution. 

Here are the problematical propositions: That an article that I wrote entitled East Timor President Lu-Olo Discredits Office of President & Perverts the Will of the People is "unconstructive and irresponsible commentary." It says that my article "lambasts President Lu Olo with sensational accusations of constitutional abuse". 

Another well-known Australian academic told me that she has to disagree with me because "there is much debate about the quality of Ministers."

Both of these propositions of course are exercises in obscurantism and obfuscation of the central jurisprudential questions that I have sought to elucidate. Both are incapable of responding in a substantive manner to the legal issues in question.

Neither of these critiques have put forward any justification for their propositions at all nor sought to address the quite substantial question of the implementation of the Constitution. The arguments elucidated in my article (and in a subsequent article East Timor: On the President's Constitutional Powers on Nominations by Prime Minister of Ministers of State) seek to elucidate the jurisprudential analysis of a Constitution.

It does not matter to me whose Constitution is under scrutiny. It is the jurist's responsibility (rather than an irresponsible intervention) to identify and describe constitutional questions from the perspective of a democratic and legal theorist.

Not one commentator has put forward any justification whatsoever for what the President has done. It seems that what he has done is beyond criticism. Or is not problematical or is a socially acceptable phenomenon notwithstanding the Constitution.

The words of the Constitution stand.

As for lambasting Lu-Olo, it's of no consequence that it is Lu-Olo; we have witnessed the flouting of the rule of law and unconstitutional conduct many times by all players. 

Why do certain views hold that those who defend democracy when it is under attack should remain silent? Because pointing out the truth is intolerable. And acquiescing in unconstitutionality is something that should be advanced? What nonsense.

The observations of the writer of the La'o Hamutuk article are insidious censorship. A pointless exercise that throws no light on the causal issues of unstable government in the face of an overwhelming election victory. In the end, such observations seek to distort the cruel reality facing a population whose very health is made vulnerable by unconstitutional actions that I have highlighted.

It is not so much the unilateral actions of outsiders but the problematical behaviours of the men and women of the Revolution who failed to transition the war factions into a responsible democratic polity and the issues - to the point of blood and bodies on the streets of Dili - that impacts the people's heads that should be the central focus of municipal civil society organisations in East Timor, rather than launching sensationist attacks on authors who seek to elucidate the law and democracy to those apparently unaware of it. 

In the end, the La'o Hamutuk writer's drivel is certainly unconstructive and irresponsible commentary.

Furthermore, the deployment of the word malae by Lao Hamutuk reeks of xenophobia. 

Indonesian Version
Portuguese Version

29 July 2018

On the President's Constitutional Powers on Nominations by Prime Minister of Ministers of State

East Timor Law Justice Bulletin Article 106 Constitution of East Timor. President has acted contrary to the Constitution.
Elucidation of Article 106 of the Constitution of the Democratic Republic of East Timor (Part 2)

The East Timor Court of Appeal validated the results of the 2018 Parliamentary election. 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 was then 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.

By any democratic standard, AMP has a clear constitutional mandate from the people though fair and free elections to govern. The people rejected the undemocratic minority regime of the former failed Fretilin government.

The Prime Minister then advanced nominations for Ministers to the President in accordance with Article 106. The President refused at least 10 nominated Ministers. This has created all sorts of governance problems even to the point where the public health is jeopardised and forced a transitional administration. [1]

The central question that these facts pose is whether the President has a discretion under Article 106 of the Constitution. [2]

Article 106 in its entirety reads:

CAPÍTULO II FORMAÇÃO E RESPONSABILIDADE
Artigo 106.º (Nomeação)

1. O Primeiro-Ministro é indigitado pelo partido mais votado ou pela aliança de
partidos com maioria parlamentar e nomeado pelo Presidente da República, ouvidos
os partidos políticos representados no Parlamento Nacional.

2. Os restantes membros do Governo são nomeados pelo Presidente da República, sob
proposta do Primeiro-Ministro.

Google translate provides a sufficient English translation. This translation is taken from the Portuguese text of the Constitution published by government of East Timor.

CHAPTER II FORMATION AND RESPONSIBILITY
Article 106 (Appointment)
1. The Prime Minister is nominated by the most voted party or by the alliance parties with a parliamentary majority and appointed by the President of the Republic, the political parties represented in the National Parliament.

2. The remaining members of the Government shall be appointed by the President upon the proposal of the Prime Minister.

The question turns on the construction of the words “upon proposal of the Prime Minister”. These are the only words of the Constitution that deal with this part of the democratic process of the appointment of the Government’s Ministers.

The first thing to notice is that it is not the role of the President to appoint the remaining members of Government of his own accord. That would be absurd because although the President is separately elected, the President does not command a majority in the Legislature; indeed has nothing to do with the Legislature since it is a sovereign organ of the State; the most supreme expression of the will of the people.

The core principle of the separation of powers is at least evident. It is the Prime Minister who has the power to nominate his Ministers and when it comes to the actual State administration, the constitutional mandate of the elections, to decide who shall be Ministers of the government. All of that is entirely consistent with a democratic interpretation of concepts and words.

What is even more evident from the ordinary meaning of the words of the provision is that the President may only appoint Ministers of the Government upon the nomination of the Prime Minister. Why does the Prime Minister in substance enjoy an unfettered power to nominate his Ministers?

There is nothing else in the constitution that limits his powers so to do. But what is more important is that it is the Prime Minister who is the real expression of the democratic process. This is so because he controls the Legislature and that entitles and empowers him to nominate Ministers.

From just a preliminary overview of these considerations, one is then compelled to the conclusion, both logically and jurisprudentially – constitutionally - that the President has no lawful power to refuse the Prime Minister’s nominations for Ministers.

It follows that the President has acted unconstitutionally.

The Heart of Responsible Government
It is instructive to refer to other democratic polities on this question. Under the Australian Constitution, for example, the chief of the Executive, the Governor-General, may, generally, only exercise his constitutional powers other than the reserve royal powers, upon instruction and direction from the Prime Minister.

As with Article 106 of the East Timorese Constitution, Australian Ministers are appointed by the Governor-General, on the advice of the Prime Minister.

The Prime Minister, having won a democratic mandate to govern, is perfectly entitled to nominate the remaining Ministers of the Crown and the Governor-General has no discretion to refuse. This is completely consistent with democratic principles.

Executive power is recognised in section 61 of the Constitution of the Commonwealth of Australia. It vests executive power in the Queen and permits its exercise by the Governor-General on the Queen’s behalf.

The Governor-General acts on advice of ministers in accordance with the principle of responsible government.

That principle is at the very heart of British and Australian constitutional arrangements.

It is one which requires the ‘Crown’ to act on the advice of ministers who are in turn members of, and responsible to, the parliament.

The formal differences between both the Australian and East Timorese constitutions; the one being parliamentary, the other being semi-presidential semi-parliamentary is not to the point and can not be raised as a rejection of the value of the comparison.

Both are directed to the constitution of a democratic state under the rule of law. Both are subject to jurisprudential interpretation accordingly.

-----

[1] Eighth Constitutional Government Press Release Dili 25 June 2018 Transitional Ministerial Administration http://www.easttimorlawandjusticebulletin.com/2018/07/ighth-constitutional-government-press.html
[2] Constituição República Democrática de Timor-Leste  http://timor-leste.gov.tl/?cat=37


W. L. Wright BA LLB

See also
Article 106: Lost in Translation http://www.easttimorlawandjusticebulletin.com/2018/05/constitution-article-106-lost-in.html

Footnote: When examining the Constitution of East Timor, it is always worth being mindful that it was never put to a popular vote. The people were never permitted to see and approve or reject the text. The constitutional creation process was not a democratic process. Rather, it was an exercise in authoritarianism conducted under the auspices of the United Nations thoroughly dominated by Fretilin political ideology. Some of that ideology is most anti-democratic, for example Article 106, in so far as it apparently provides for a minority government - the very antithesis of democratic rule.

24 July 2018

Res Furtivae and the Land Law of East Timor

Image: Copyright wlw2002
The Indonesian War of Aggression in East Timor (1975-1999) was essentially motivated by Indonesian imperialism and the conquest of the land comprising the territory of the nation of East Timor; to occupy it, to be as master of it.

Indonesia extended its land law to the then illegally occupied land in 1976. [1]

Indonesia then proceeded with a genocide in East Timor for 24.5 years; soaking the land in the blood of the innocent and filling the earth with the dead; perpetrating unspeakable crimes against humanity for which there has been no accounting.

During that darkest of East Timor's history, many fled their homes or were forcibly evicted as the wave of violence at the hands of the Indonesian security forces swept across the landscape leaving in their wake destruction, displacement, homelessness, refugees and an ocean of suffering.

Their homes were subsequently occupied and in many cases sold to bona fide purchasers - if any such purchasers ever existed since all knew of how these lands had come to be in the possession of persons other than their true owners.

In many cases, when the war finished in 1999, the true owners returned to their former homes in Dili and the countryside estates only to find them in the possession of others.

Land conflicts in East Timor have ever since been frequent and violent. The 15-year failure of all governments to enact East Timor's own land law reflects the complexity of the problem. The new land law is now in place yet it remains to be seen whether it is an effective resolution of the social problem of land disputes.

Res furtivae is a term of the ancient Roman law. [2]

By the law of the ancient jurists of Rome, if a thing is stolen and where a thing is found to be in the possession of another, most likely it had been stolen. Lawful title could never be acquired by prescription of any length of time (prescriptio temporis). Under the Lex Atinia (? 198BC), the taint attaching to stolen goods (res furtivae) could not be removed until they got back into the possession of the true owner.

Even a subsequent bona fide possessor did not acquire ownership of the thing by prescription.

Land was not an object of theft although earlier sources of the Roman law such as Gaius tells us that some of the even older Roman writers thought it was. The English philosopher Thomas Hobbes said 'Tis true that the Land can not be stolen nor the right of a Mans Tenure...[3]

In any event, under Roman law, the taint that attached to stolen movables also attached to land or houses from which the owners had been driven by violence (res vi possessae).

These ideas are pertinent to East Timor. Res furtivae as a jurisprudential doctrine under the Roman Law could form a just and rational, ethically sound and philosophically justified foundation for the resolution of land disputes in East Timor.


Warren Leslie Wright
Lawyer

NOTES
[1] Law No 7 of 1976 on the Legalisation of the Unification of East Timor into the Unitary Republic of Indonesia
[2] Introduction to Roman Law by the late William A. Hunter, MA LLD of the Middle Temple author of Roman Law, in the Order of a Code Revised by Lawson FH All Souls Reader in Roman Law in the University of Oxford Ninth Edition Revised London Sweet & Maxwell 1934.
[3] Thomas Hobbes Writings on Common Law and Hereditary Right Oxford University Press 2005 and at page 88

Post Script: Land has always had its own highly sophisticated conceptualisation and expression of the rights attaching to land by unique principles and ideas. The Land Law forms its own entire jurisprudence in the law of almost every property system.

21 July 2018

East Timor President Lu-Olo Discredits Office of President & Perverts the Will of the People

EDITED* 24/07/2018 The East Timor Guide Post published an English translation of a media report dated 17 July 2018 by Suara Timor Lorosa'e on political circumstances in East Timor that bears some closer scrutiny.

There follows the text of the report:

"Timor-Leste’s govt gaps: lack of cooperation between Taur and Lu-Olo Suara Timor Lorosae, July 17, 2018 language source: Tetun - Timor-Leste’s new government still has ministerial gaps after three weeks into office because of lack of cooperation between Prime Minister, Taur Matan Ruak and President of the Republic, Francisco Guterres Lu-Olo.

Universidade Dili (UNDIL)’s Rector, Estavao Da Costa Belo said Timor-Leste was facing crisis of coordination between President of the Republic and Prime Minister which left gaps in the new government.

“As a citizen, I am sad seeing impasse in the country continues extending and it happens because of lack of coordination between the government and President of the Republic,” Belo told STL at his office on Monday (16/07).

He said the top leaders of the coalition party which formed the government should let Prime Minister to weigh up candidates that it presented, so that Prime Minister could negotiate with President of the Republic, otherwise, the deadlock would not end. In addition, civil society organization, Fundasaun Mahein’s Director, Nelson Belo said the extending standoff after fresh election affected Timorese people and the country’s development, therefore, it was important for those in power to sit together and resolve the current political situation.

Epifanio Faculto, a survivor of Santa Cruz Massacre said he was sad with the attitude of Timor-Leste’s leaders which prolonged the impasse because it affected Timorese people’s economy and the country’s development."

In another media report, the following English translation text appears:

PM Ruak defends the innocence of the rejected-minister candidates Timor Post, July 17, 2018 language source: Tetun

Timor-Leste’s Prime Minister (PM), Taur Matan Ruak keeps the list of nominated ministers which refused by President of the Republic, Francisco Guterres Lu-Olo because according to Timor-Leste’s law these people are innocent before court found them guilty.

On June 22, 2018, President of the Republic had refused to inaugurate 11 nominated ministers from the coalition party, Alliance of Change for Progress (AMP) because of corruption investigation.

“Prime Minister’s position is to keep the list that he presented to President of the Republic before inauguration on June 22,” Minister of Legislative Reform and Parliamentary Issues, Fidelis Magalhaes told media after
participating in a plenary session at National Parliament on Monday (16/07).

The AMP members that President Lu-Olo refused to inaugurate on June 22 included:

Helder Lopes,
Francisco Kalbuadi Lay,
Gastão Sousa,
Tomas Cabral,
Marcos Da Cruz,
Sergio Lobo, Virgilo Smith,
Jacinto Rigoberto,
Antonio Verdia,
Jose Turquel, and
Filomeno Paixão.

However, after two weeks of discussion since the government took office, President of the Republic had inaugurated Filomeno Paixao as Minister of Defense on July 10th and last week, Prime Minister Ruak said two candidates namely Gastão Sousa and Marcos Da Cruz had stepped down from their candidacies and they would be replaced by Xanana Gusmão and Rogerio Mendonça. Magalhaes said Taur Matan Ruak could not choose other people to replace these candidates since Dili District Court had said that these candidates’ names did not appear in any case that currently filed in court."

The Facts
For present purposes, the relevant facts are that:
The democratically elected government has put forward the names of Ministers to the President.
The President has refused to inaugurate 10 Ministerial candidates.

The Issue
The most central question raised by these facts is whether it is within the constitutional powers of the President; whether the President has acted constitutionally, or whether the office of President has been discredited beyond democratically acceptable principles. It is not enough to hide behind the text of the Constitution.

The Constitution
This calls for an examination of:

CAPÍTULO II
FORMAÇÃO E RESPONSABILIDADE
Artigo 106.º
(Nomeação)
1. O Primeiro-Ministro é indigitado pelo partido mais votado ou pela aliança de
partidos com maioria parlamentar e nomeado pelo Presidente da República, ouvidos
os partidos políticos representados no Parlamento Nacional.
2. Os restantes membros do Governo são nomeados pelo Presidente da República, sob
proposta do Primeiro-Ministro.

Google translate provides a sufficient English translation. THis translation is taken from the Portuguese text of the Constitution published by government of East Timor.

CHAPTER II
FORMATION AND RESPONSIBILITY
Article 106
(Appointment)
1. The Prime Minister is nominated by the most voted party or by the alliance parties with a parliamentary majority and appointed by the President of the Republic, the political parties represented in the National Parliament.
2. The remaining members of the Government shall be appointed by the President upon the proposal of the Prime Minister.

The words are clear enough in their ordinary meaning.

There is no constitutional jurisprudence to interpret the provisions.

It is my opinion that the President's powers in relation to the appointment of the Executives Ministers do not permit him to refuse the government's candidates.

In doing so, the President has acted unconstitutionally and ought to be called before the Parliament and the Court of Appeal to account accordingly. He has discredited the Office of the President of the Democratic Republic. He has perverted the will of the people expressed by elections.

The President should resign.


Warren L. Wright BA LLB
Lawyer

Sources

Constituição República Democrática de Timor-Leste  http://timor-leste.gov.tl/?cat=37

Article 106: Lost in Translation http://www.easttimorlawandjusticebulletin.com/2018/05/constitution-article-106-lost-in.html
-----
* Edit Addition of Footnote 24 July 2018

In as far as can be in a true democracy, the Chief of the Executive must act on advice from the Prime Minister.

"The role of the Governor-General.....While Executive Government powers are exercised by the Governor-General or in his or her name, such actions are carried out as advised by the Prime Minister and Ministers." 

Save for the Reserve Powers, all of the Executive chief's powers are only constitutionally and democratically exercised under the ultimate authority of the mandate of the democratically elected government that is the highest expression of the will of the people, in democratic States.

17 July 2018

Eighth Constitutional Government Press Release Dili 25 June 2018 Transitional Ministerial Administration

Eighth Constitutional Government
.............................................................................................................................
Press Release
Dili, 25th of June 2018
Transitional Ministerial Administration

Considering that the 8th Constitutional Government took office last Friday, June 22nd, and that, consequently, it is important to deal immediately with the special process of "portfolio transition" of the ministries of the VII Constitutional Government to the ministries of the current Government.

Considering that in this very early period of the mandate of this Government and as there is still no organic law of the Government, situations may still cause some lack of definition regarding the attributions of each ministry;

Considering also that some members of the new Government have not yet been sworn-in, in particular some ministers, and that in some cases there is a lack of institutional leadership necessary for the 'portfolio transition' and for the commitments associated with the day-to-day management of the ministries;

As such, and in accordance with part c) of nº1 of Article 117 of the Constitution of the Republic, the Prime-Minister declares that:

  1. The Minister of State and of the Presidency of the Council of Ministers, Agio Pereira, shall, on a transitional basis, be responsible for the ministries whose incumbent Minister has not yet taken office, with the support of the Deputy Ministers and Secretaries of State of each of these ministries that have already taken office, to ensure coordination in these sectors of activity.
  2. The ministries that are temporarily under the responsibility of the Minister of State and of the Presidency of the Council of Ministers are the following:
a)      Ministry of Tourism, Commerce, Industry and Environment;
b)     Minister of Planning and Strategic Investment;
c)      Ministry of Defense;
d)     Ministry of the Interior;
e)      Ministry of Petroleum and Mineral Resources;
f)       Ministry of Veteran Affairs;
g)      Ministry of Health.

  1. Until the swearing in of the incumbent Ministers of the Ministries refereed, their nº 2, the Vice-Ministers and Secretaries of State of this ministries shall report to the Minister of State and of the Presidency of the Council of Ministers.
  2. The Minister of State and of the Presidency of the Council of Ministers shall, in particular, be responsible for ensuring the transition of the previous Government's affairs to the ministries referred to in paragraph 2.
The delegation of powers to the Minister of State and to the Presidency of the Council of Ministers shall automatically terminate when the minister incumbent of each of the ministries referred to in paragraph 2 is sworn in his or her functions. ENDS

13 July 2018

Leis das Terras English translation please?

Good day readers,

May I ask if anyone has an English translation of the new land law, may I know where it is or may I have your copy please? Use Contact Me form if you know, please.

Obrigadu.





Publisher
East Timor Law & Justice Bulletin

09 July 2018

JSMP holds meeting with the Prosecutor General to discuss 2017 Overview of the Justice Sector Report

"Most cases of domestic violence ...continue to result in suspended sentences. Suspended sentences often have no effect or no “deterrent effect” on convicted persons because defendants believe that a suspended sentence is not a punishment." JSMP 

JSMP Press Release Dili, 6 July 2018 - JSMP holds meeting with the Prosecutor General and discusses its findings from the 2017 Overview of the Justice Sector Report

On Thursday 5 July 2018 JSMP held a meeting with the Prosecutor General and discussed its findings from the 2017 Overview of the Justice Sector Report at the Office of the Prosecutor General in Colmera, Dili.

"JSMP has tried all means possible to transmit its findings to key institutions in the justice sector and has engaged in a range of efforts to contribute to the development of Timor-Leste's justice sector to make it strong and to guarantee justice for all", said the Executive Director of JSMP, Luis de Oliveira Sampaio.

During this meeting JSMP presented and emphasised the results of court monitoring and recommended for the Office of the Prosecutor General to convey its findings to public prosecutors for consideration in the judicial process in the future. These issues included:

1. Suspended sentences with rules of conduct in cases of domestic violence

Most cases of domestic violence (DV) continue to result in suspended sentences. Suspended sentences often have no effect or no “deterrent effect” on defendants/convicted persons because defendants believe that a suspended sentence is not a punishment.

To deal with this matter, JSMP has advised that when making final recommendations in DV cases the Public Prosecution Service can request for the court to apply suspended sentences with obligations (pursuant to Article 69) and rules of conduct (Article 70) of the Penal Code.

2. Guidelines on preparing charges in cases of gender based violence (GBV) – DV

JSMP has observed that often prosecutors are inconsistent in their selection of relevant provisions of the Penal Code in domestic violence cases. In many cases they charge the crime of simple offences against physical integrity (Article 145 of the Penal Code), and sometimes they charge the crime of mistreatment of a spouse (Article 154 of the Penal Code). This situation has negative implications on the victim's rights because prosecutors are free to choose articles based on their preference without examining the complexity and nature of each case.

Therefore JSMP has requested for the Public Prosecution Service to develop legal guidelines that explain the key elements of articles 145, 146 and 154 of the Penal Code, and provide some examples of cases that use the correct article to charge defendants, and to provide clear guidelines on sentencing where prosecutors should make recommendations based on the circumstances in each case.

3.  Withdrawal of complaints before the Public Prosecution Service and the Court

In many cases JSMP has observed that complaints have been withdrawn in cases involving semi-public crimes, which always happens in court. Article 216 (3) of the Criminal Procedure Code states that the Public Prosecutor Service can also validate desistance and endorse this process when it has knowledge.

JSMP believes that it is important for the Public Prosecution Service to clearly explain the details of this process and the possible outcome if the parties continue to take the matter to court so that they are well-informed before they decide to take a matter to court.

This will help to reduce the pending cases at the courts and the Public Prosecution Service (rather than wasting time preparing charges, going to court and having a settlement validated) unless the parties don't want to validate the withdrawal.

4. Civil compensation for serious gender based violence

Normally civil matters take a long time without providing any certainty for the parties, therefore JSMP believes that because the law allows it, the Public Prosecution Service can include a request for civil compensation in its charges for cases that have harmed victims or placed an additional burden on victims (for example defendants who have committed the crime of sexual abuse against minors who are physically disabled and they have become pregnant and have given birth).

Article 72.2 (a, b, and c) of the Criminal Procedure Code on procedural positions provides for this option and the Public Prosecution Service can include a request with the criminal charges in  its indictment.

5.  Charges for crimes involving minors

In practice JSMP has found that in most cases involving minors the Public Prosecution Service only charges the crime of simple offence against physical integrity together with Article 35 of the Law Against Domestic Violence.

JSMP believes that the most specific article in cases involving minors is Article 155 of the Penal Code on the mistreatment of a minor.

6.  Fines and requirements of Article 36 of the Law Against Domestic Violence

JSMP has observed and found that the Public Prosecution Service also often requests that fines be imposed  in cases of domestic violence and the courts accept this and impose fines without consideration or compliance with the requirements of Article 36 of the Law Against Domestic Violence:

Article 36 of the Law Against Domestic Violence states that the Court can substitute a prison sentence with a fine, to:

1.       Guarantee the security of the victim;

2.      The defendant is ready to accept treatment or monitoring from support services for victims; and

3.       To preserve family unity.


7. Accessibility of trials at the Court of Appeal

JSMP has observed that most trials or rehearing of evidence before the Court of Appeal was done differently to the Courts of First Instance, and almost always via written notification only. Trials before the Court of Appeal were almost always closed to the public, or completely closed, without access to the public or the parties (appellant and respondent) as parties involved in this process.

JSMP believes that to ensure that all people understand the process and their respective interests in each case, and at the very least the announcement of the decision, the Court of Appeal needs to make the hearing to announce the decision open to the public, especially for the interested parties. This will help the parties to receive clear and credible information relating to the decision and considerations of the court in each case.

The Prosecutor General was appreciative and happily accepted the issues presented by JSMP and will seek a way to discuss them with prosecutors. The Prosecutor General emphasised that when he started his mandate he introduced a mechanism to distribute the work of public prosecutors to ensure that everyone can work in a responsible and professional manner. It should not be the case the some prosecutors are burdened with too much work, whilst others only have a normal amount or just do what they want. Therefore the Prosecutor General applies or imposes disciplinary measures on prosecutors who have poor work performance or are involved in other functional irregularities.

The Prosecutor General said that he always encourages his prosecutors to work in a professional manner, to work wholeheartedly, and in particular to have a sense of “institutional pride” and uphold the confidence and responsibility given to them by the State and the people to represent the people and the State in defending legality in accordance with the law.

The Prosecutor General recognised that the justice sector is still facing a range of challenges and in particular he expressed his serious concerns about failures to apply coercive measures for important crimes and finally against those who abscond from justice. Therefore he was happy to accept the ideas and thought of all entities, especially JSMP who has been closely following developments in the justice sector to further improve the justice system in Timor-Leste.

This meeting ended with the submission of the 2017 Overview of the Justice Sector report, the 2017 National Parliamentary Watch Report and the JSMP 2017 institutional report.

There is a plan to hold a similar meeting with the President of the Court of Appeal in the next few weeks, depending on the availability of the President of the Court of Appeal.

07 July 2018

JSMP Komunikadu Imprensa Semináriu Rejionál RAEOA 4 Jullu 2018

The rights of gay citizens in East Timor are not protected by law. Commendations to JSMP for their courage in articulating this sensitive issue. East Timor Law & Justice Bulletin Warren Leslie Wright
Komunikadu Imprensa Semináriu Rejionál RAEOA RAEOA 4 Jullu 2018 - Prosesu kazu krime no sivíl tuir sistema Justisa Formál sai preokupasaun husi reprezentante suku no grupu LGBT iha Semináriu Rejionál iha Rejiaun Administrativa Espesiál Oecusse-Ambeno (RAEOA)

Iha 20 Juñu 2018, JSMP organiza semináriu rejionál iha jurisdisaun tribunál distritál Oecusse (TDO) iha RAEOA kona-ba knaar órgaun soberanu, partisipasaun públiku iha prosesu halo lei no asesu ba justisa formál.

Semináriu ne’e nia objetivu mak atu fasilita kontaktu direta entre reprezentante suku, komunidade no grupu LGBT sira ne’ebé hetan ona treinamentu kona-ba demokrásia, kna’ar órgaun soberanu, partisipasaun públiku iha prosesu halo lei no asesu ba justisa formál ho reprezentante sira hosi setór justisa nian. Liuhosi semináriu ne’e bele hakle’an tan autóridade lokál no grupu LGBT sira-nia koñesimentu nomós bele hato’o sira nia hanoin no preokupasaun sira relasiona ho kna’ar órgaun soberanu sira-nian.

Partisipante sira ne’ebe partisipa iha semináriu ne’e mai hosi xéfe suku sira, xéfi aldeia no membru konsellu suku husi suku Bobometo, Postu Administrativu Oesilo, suku Abani, Postu Administrativu Passabe no suku Beneufe, Postu Administrativu Nitibe inklui mós grupu LGBT (lesbian, gay, bisexual and transgender) sira. Totál partisipante hamutuk ema na’in 25.

“JSMP konsidera atividade ne’e importante tebes hanesan meiu ida hodi fó espasu ba reprezentante suku no grupu LGTB sira hodi bele aprezenta sira-nia preokupasaun relasiona ho justisa formál iha Timor-Leste liu-liu ba kazu sira ne’ebé sira enfrenta iha suku hodi autór judisiáriu sira bele diretamente fó resposta ho nune’e bele hatan ba dúvida sira ne’ebé durante ne’e sira hasoru iha baze”, dehan Diretór Ezekutivu JSMP, Luis de Oliveira Sampaio.

Oradór sira mai hosi autór judisiáriu sira iha jurisdisaun TDO iha RAEOA nian. Oradór Tribunál reprezenta hosi Juis Administradór Tribunál RAEOA, Meritísimu juis, Dr. João Ribeiro ne’ebé ko’alia kona-ba kna’ar tribunál iha sistema justisa formál Timor-Leste nian no Ministériu Públiku reprezenta hosi dignísimu prokuradór, Dr. Mateus Nesi ne’ebé ko’alia kona-ba kna’ar Ministériu Públiku no dezafiu sira no husi Defensoria Públiku reprezenta hosi Dr. Calisto Tout, hodi koali’a kona-ba knaar Defensória Públika iha fornese asisténsia legál ba ema kbi’it laek sira tuir Konstituisaun no lei sira. Iha sira-nia intervensaun sira haktuir katak dezafiu ba autór judisiáriu sira iha jurisdisaun Tribunál Distritál Oecusse (TDO) mak falta fasilidade no rekursu umanu ne’ebé menus hodi implika ba servisu antedimentu outór tribunál nian povu iha servisu asesu ba justisa formál.

Preokupasaun sira ne’ebé partisipante sira foti mak kona-ba prosedimentu ba prosesu krime no sivíl, legalidade autóridade suku bele rezolve kazu sira tuir uzu kustume inklui mós prosesu rezolve kazu violénsia doméstika iha suku. Nune’e mós prosesu kazu abandona familia no fó oan ba ema nia oan feto depois la responsabliza nia aktu.

Juis Administradór Tribunál RAEOA haktuir katak lala’ok prosesu kazu sivíl no krime diferente iha tribunál. Kazu krime ne'e iha ligasaun direta ho interese públiku sé akontese krime ruma estadu liuhosi nia autóridade ne’ebé tutela ba asaun penál nian hanesan Ministériu Públiku ho nia kompeténsia halo kedas intervensaun hodi lori kedas kazu ne’e ba prosesu.

Entretantu kazu sivíl ne'e iha ligasun ho interese pesoál katak parte sira mak iha interese atu hato'o sira-nia kazu no buka sira-nia defeza para atu reprezenta sira hodi bele halo defeza bainhira prosesu iha tribunál. Nia mos akresenta katak iha kazu sivíl bele rezolve iha suku sé fose husi parte rua iha konkordánsia atu rezolve iha nível suku ne’ebé involve autóridade lokál sira.

Kona-ba kazu ne’ebé suku sira bele resolve mak krime semi públiku sira no kazu sivíl sira ne’ebé husi parte sira konkorda atu rezolve iha nível suku nian, maibé iha kazu violénsia doméstika suku bele buka resolve maibé ne’e intermus kultura la’ós atu hapara prosesu iha tribunál tanba kazu violénsia doméstika hanesan krime públiku tanba ne’e prosesu nafatin la’o to’o iha dezisaun iha tribunál.

Relasiona ho kazu abandona familia ne’e bele krime no bele sivíl iha prosesu sivíl nia sé reo tenki kumpri nia devér atu responsabliza alimentasaun lezadu sé nia lakumpri sei prosesu tuir kmi abandona familia tuir lei penál. Relasaun ho kazu fó oan, juis afirma katak importante liu atu bele prova katak ema ne’e mak fó oan mak husi inísiu tenki tau labarik ne’e nia aman nia naran iha ata sertidaun sarani nian hodi tribunál bele komprova katak ne’e mak nia oan no bele husu nia resposablidade ba nia aktu ne’e tuir lei.

JSMP hein katak ho fórum sira hanesan ne’e sei forñese referénsia útil ba autór tribunál sira atu iha jurisdisaun TDO bele inkorpora realidade no nesesidade komunidade nian iha prosesu justisa formál Timor-Leste nian ne’ebé sei iha prosesu denvolvimentu no konsolidasaun.

Programa ne’e realiza tanba hetan apoiu finanseriu hosi Guvernu Australia liu hosi programa DFAT.

Representatives from villages and the LGBT community conveyed concerns about how criminal and civil cases are processed through the formal justice system

JSMP conducts forum for GLBT citizens expressing concerns about how the formal justice sector treats them. East Timor Law & Justice Bulletin Warren Leslie Wright
Image added by ETLJB
JSMP Press Release Regional Seminar RAEOA 4 July 2018 - Representatives from villages and the LGBT community conveyed their concerns about how criminal and civil cases are processed through the formal justice system during a Regional Seminar in the Special Administrative Region Oecusse-Ambeno

On 20 June 2018 JSMP held a regional seminar in the jurisdiction of the Oecusse District Court within the Special Administrative Region of Oecusse-Ambeno on the role of the sovereign organs, public participation in the law making process and access to formal justice.

The aim of this seminar was to facilitate direct contact between representatives of the justice sector and village representatives, community members and the LGBT community who have received training on democracy, the role of the sovereign organs, public participation in the law making process and access to formal justice. This seminar allowed local authorities and members of the LGBT community to increase their knowledge as well as convey their thoughts and concerns relating to the role of the sovereign organs.

This seminar was attended by village chiefs, sub-village chiefs and members of village councils from Bobometo Village, Oesilo Administrative Post, Abani Village, Passabe Administrative Post and Beneufe Village, Nitibe Administrative Post and included members of the LGBT (lesbian, gay, bisexual and transgender) community. There were 25 participants in total.

“JSMP considers this to be a very important activity and a way to enable village representatives and members of the LGTB community to present their concerns regarding formal justice in Timor-Leste especially in cases encountered in the village so that judicial actors can respond directly and allay their concerns regarding their experiences as the grass roots level”, said Executive Director of JSMP, Luis de Oliveira Sampaio.

Permanent Specialised Committees of the V Legislature of the National Parliament

East Timor National Parliament Permanent Committees appointed. East Timor Law & Justice Bulletin Warren Leslie Wright
Parliamentary Chamber of the people
Press Release National Parliament Dili, 05 July 2018 - JSMP congratulates the MPs elected to lead the Permanent Specialised Committees of the V Legislature of the National Parliament

On 4 July 2018 the National Parliament elected members to the chair of the Permanent Specialised Committees of the National Parliament. JSMP congratulates the members of parliament chosen to act as President, Vice-President and Secretary of the Chair of the Permanent Specialised Committees of the National Parliament for the 2018-2023 period.

"JSMP hopes that members of the new structure can effectively lead the Committees in accordance with the Parliamentary Rules of Procedure to contribute to the productivity of the National Parliament in accordance with the Constitution so they can carry out their legislative, supervisory and political decision making powers during their mandate, especially important laws such as the Law Against Corruption, Law on Reparations, Law on a Public Memory Institute, Law on Child Protection, etc", said the Executive Director of JSMP, Luis de Oliveira Sampaio.

The names of the MPs elected to the positions of President, Vice-President and Secretary of the Permanent Specialised Committees are as follows:

Committee A - Dealing with Constitutional Issues and Justice; Committee President Ms. Carmelita Caetano Moniz (CNRT), Vice-President Mr. Francisco de Vasconcelos (PLP) and Secretary Mr. Óscar de Araújo (CNRT).

Committee B - Dealing with Foreign Affairs, Defence and Security Issues; Committee President: Mr. Adérito Hugo da Costa (CNRT), Vice-President: Ms. Maria Rosa da Câmara (CNRT) and Secretary: Mr. Leandro Lobato (CNRT).

Committee C - Dealing with Public Finance Issues; Committee President: Ms. Maria Fernanda Lay (CNRT), Vice-President: Ms. Rosalina Ximenes (PLP) and Secretary: Mr. Antonio M .N .A. Tilman (KHUNTO).

Committee D - Dealing with Economic and Development Issues; Committee President: Ms. Virgínia Ana Belo (CNRT), Vice-President: Mr. Ricardo Baptista (CNRT) and Secretary: Mr. Jose Virgílio R. Ferreira (CNRT).

Committee E - Dealing with Infrastructure Issues; Committee President: Mr. Abel Pires Ximenes (PLP), Vice-President: Mr. Marcos Xavier (CNRT) and Secretary: Ms. Maria Anabela Sávio (FRETILIN).

Committee F - Dealing with Education, Health, Social Security and Gender Equality Issues; Committee President: Ms. Maria Gorumali Barreto (CNRT), Vice-President: Mr. Noé da Silva Ximenes “BukaTuir” (PLP) and Secretary: Ms. Luisa Taeki (CNRT).

Committee G - Dealing with Education, Youth, Culture and Citizenship; Committee President: Ms. Albina M. Freitas (CNRT), Vice-President: Mr. Sabino Soares “Guntur” (PLP) and Secretary: Mr. Gabriel Soares (CNRT).

Judicial System Monitoring Program and East Timor Court Reports

East Timor Law & Justice Bulletin East Timor Court Reports by JSMP Warren Leslie Wright
JSMP Logo
East Timor Court Reports - The East Timor Judicial System Monitoring Program is the peak law and justice civil society organisation in East Timor.

JSMP has recently launched a new web site.

Here is the URL:

jsmp.tl

JSMP has always done magnificent works in the justice sector of East Timor since at least 2000 when I first arrived in the country; including the production of the only accessible source of court proceedings reports.

This source of information on the Courts of East Timor is an invaluable resource and the new web site contains an entire library of these reports, including English language translations.

The reports are very detailed with facts, the judicial process and the Courts' decisions in a wide range of cases in the Dili, Suai, Oekusse and Baucau District Courts.

I highly commend JSMP and all of the citizens of East Timor undertaking this critically important role.

ETLJB will no longer publish the court reports but will republish the JSMP web site URLs to the latest reports as they are released.

I take this opportunity to express my congratulations and solidarity with JSMP and to pledge my ongoing support.

I urge donors to contribute generously to JSMP.


Warren L. Wright BA LLB
Principal
Wright Law & Justice

Publisher
East Timor Law & Justice Bulletin


05 July 2018

JSMP: Sumáriu Kazu Tribunál Distritál Dili Periódu Abril 2018

JSMP report on proceedings in Dili District Court April 2018 East Timor Law Justice Bulletin
Deskripsaun sumáriu ba desizaun kazu sira

1. Krime ofensa integridade fízika simples natureza violénsia doméstika

Nú. Prosesu : 0266/17.PDDIL

Kompozisaun Tribunál  : Singulár

Juis : Dra. Jumiaty Maria Freitas

Prokuradór                       : Dr. Nelson de Carvalho

Defeza                              : Dra. Agustinha de Oliveira

Tipu pena                         : Pena prizaun tinan 1 suspende ba tinan 1 fulan 6


Iha 02 Abril 2018, Tribunál Distritál Dili deside liuhosi notifikasaun ba krime ofensa ba integridade fízika simples ho natureza violénsia doméstika ne’ebé envolve arguidu MC hasoru nia feen, iha Distritu Dili.


Akuzasaun Prokuradór

JSMP Seminar on Democracy, Role of Sovereign Organs and Access to Formal Justice

Ilha de Ataúro
JSMP Press Release Dili, 28 May 2018 - The Community of Beloi Village, Atauro Administrative Post, for the first time received training on democracy, the role of sovereign organs and access to formal justice

The Community of Beloi Village, Atauro Administrative Post, for the first time received training on democracy, the role of sovereign organs and access to formal justice which was organised by JSMP on 19 May 2018. Most of the participants in this training were youths, comprising 15 women and 15 men.

This training was part of an ongoing activity for members of village councils and members of the LGBT community aimed at increasing the knowledge of community leaders and the LGBT community on the functioning of democracy and the role of State organs in terms of law making and access to the formal justice system in Timor-Leste.

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