13 September 2018

Prime-Minister Taur Matan Ruak

ETLJB East Timor Law and Justice Bulletin Warren Leslie Wright
Taur Matan Ruak
Prime-Minister Taur Matan Ruak
The Prime Minister has his own competencies and those delegated to him by the Council of Ministers, in accordance with the Constitution and the law.

It is the responsibility of the Prime Minister to head the Government and to preside over the Council of Ministers; to direct and guide the general policy of the Government and all the governmental action; to represent the Government and the Council of Ministers in their relations with the President of the Republic and the National Parliament; to coordinate the integrated national security system; to guide the general policy of the Government in the areas of defense, security and national intelligence; to guide the Government's general policy in its external relations and to represent the Government before the international community; to guide the Government's general policy in the area of ​​financial management, including the banking sector, the tax system and the investment of the Petroleum Fund; to exercise powers of tutelage over Oe-Cusse Ambeno Special Administrative Region and Oe-Cusse Ambeno and Ataúro's Special Zones of Social Market Economy; to manage the government's information technology system and ensure the provision of its services, as well as to implement computer systems in the national territory, in conjunction with the competent Government Departments; to promote the institutional strengthening of the State; to promote inclusion policies and support for women’s entrepreneurship; and to exercise other powers provided for in the Constitution and in law and not attributed to other members of the Government.

As the head of the Government, the Prime Minister has the power to issue directives to any member of the Government and to make decisions on matters included in the areas under any Ministry or Secretariat of State, as well as to create eventual or permanent committees or working groups on matters that are the responsibility of the Government.

The Prime Minister presides over the Presidency of the Council of Ministers, the government department whose mission is to support the Council of Ministers and other members of the Government, as well as to promote the coordination of the various governmental departments.

In direct dependence of the Prime Minister are the following services and organisms: Secretary of State for Equality and Inclusion; National Intelligence Service; Inter-ministerial Security Committee; Integrated Crisis Management Center; Civil Service Commission; AMRT - Timorese Resistance Archive and Museum; Centro Nacional Chega, I.P .; Agency of Information and Communication Technology, l.P. - ICT TIMOR; Office of Support to Civil Society; General Inspection of the State; National Institute of Public Administration; Interministerial Council for Fiscal Reform.

In his absences or impediments, the Prime Minister shall be replaced by the Minister of State, by the Coordinating Minister for Economic Affairs or by the next member of the Government, in accordance with the order of precedence established in article 3.0 of Decree-Law No. 14/2018 that approves the organic structure of the Eight Constitutional Government.

Minister for Foreign Affairs and Cooperation Dionísio da Costa Babo Soares

East Timor Law and Justice Bulletin Warren Leslie Wright
Dionísio da Costa Babo Soares
Structure of the VIII Constitutional GovernmentMinister for Foreign Affairs and Cooperation Dionísio da Costa Babo Soares

The Ministry of Foreign Affairs and Cooperation is the government department responsible for designing, implementing, coordinating and evaluating the policy, defined and approved by the Council of Ministers, in the areas of foreign policy and international cooperation, consular functions and the promotion and defense of interests of Timorese citizens abroad, including: planning, proposing and implementing Timor-Leste's foreign policy and ensuring its unity and coherence;

to prepare legislative and regulatory projects in its respective areas of responsibility;

to negotiate and propose the conclusion of international treaties and agreements in accordance with the priorities of Timor-Leste's foreign policy, without prejudice to the competence of other organs in relation to border delimitation;

to promote the interests of Timor-Leste abroad and ensure the protection of Timorese citizens abroad; to ensure representation of Timor-Leste in other States and International Organizations and manage the network of embassies, missions, permanent and temporary representations and consular posts, in accordance with foreign policy priorities;

to plan and carry out the preparation for the accession of Timor-Leste to the Association of South-East Asian Nations (ASEAN) and to ensure representation of the country in its meetings and activities; to coordinate Timor-Leste's participation in the Community of Portuguese Speaking Countries (CPLP) and ensure representation of the country in its meetings and activities;

to centralize and coordinate the relations of any public entities with diplomatic or consular missions, international organizations and representatives of accredited cooperation services in Timor-Leste;

to propose and implement international cooperation policy, in coordination with the Ministry of Finance and other relevant governmental institutions;

to coordinate, together with the Ministry of Finance and other relevant government departments, Timor-Leste's relations with development partners;

to carry out the functions assigned to it in matters relating to economic diplomacy; to exercise the functions of National Authorizing Officer;

to establish mechanisms for cooperation with foreign missions established in the country;

to establish mechanisms of collaboration and coordination with other government bodies with guardianship over related areas of activity.

Under the Ministry of Foreign Affairs and Cooperation are: ACTL-Timor-Leste Cooperation Agency; Institute of Diplomatic Studies; Mission Unit for Integrated Regional Development - TIA.

Minister of Legislative Reform and Parliamentary Affairs Fidelis Manuel Leite Magalhães

East Timor Law and Justice Bulletin Government of East Timor Warren Leslie Wright
Fidelis Manuel Leite Magalhães
Structure of the VIII Constitutional Government Ministry of Legislative Reform and Parliamentary Affairs is the government department responsible for designing, implementing, coordinating and evaluating the policy, defined and approved by the Council of Ministers on the development, harmonization and consolidation of the legal system, judicial reform, parliamentary affairs and in particular: to carry out a thorough study on the reform of laws, standardization and harmonization of legislation, as well as the assessment of the need for government or National Parliament intervention;

propose and promote the modernization of the legislative procedure;

propose and promote the reform and modernization of the judiciary;

analyse and prepare the projects and proposals of legal and regulatory diplomas of the Government, in coordination with the proposing ministries;

propose measures to promote the innovation of public administration, namely through the use of e-government instruments, the dissemination of Government actions and measures, and the organization of the form and manner of public intervention;

ensure regular coordination with the National Parliament; represent the Government at the Conference of Representatives of Parliamentary Assemblies and at the plenary sessions of the National Parliament, when the Prime Minister or Ministers responsible for the matter are absent or unable to attend;

translating or accompanying the translation of legal and regulatory diplomas as a measure to promote access to law by citizens;

propose the policy and elaborate the necessary legislation and regulation in the area of ​​the media; exercise oversight and tutelage over the state media; coordinate the dissemination of information on Government programs and actions.

In direct dependence of the Ministry of Legislative Reform and Parliamentary Affairs are: RTTL - Radio and Television of Timor-Leste, EP; TATOLI, Timor-Leste News Agency, IP.

Minister of Justice Manuel Cárceres da Costa

East Timor Leste Law Warren Leslie Wright Law Justice
Manuel Cárceres da Costa
Structure of the VIII Constitutional Government Ministry of Justice is the government department responsible for the design, implementation, coordination and evaluation of the policy, defined and approved by the Council of Ministers, in the area of ​​justice, law and human rights and land and property, namely:

to propose the policy and draft the legislation and regulations necessary for its areas of responsibility;

to propose measures on the definition of mechanisms for regulating traditional justice and its interaction with the formal system, in coordination with the Ministry of Legislative Reform and Parliamentary Affairs;

to propose and implement measures to extend the judicial map in coordination with the Ministry of Legislative Reform and Parliamentary Affairs;

to propose the definition of criminal policy and ensure its implementation and the proper administration of justice;

to regulate and manage the Center for Legal and Judicial Training and promote the training of human resources for the different areas of activity in the justice sector;

to promote coordination and dialogue among all judicial actors, and ensure their participation in the discussion and preparation of proposals for legislation and regulations in the judicial sector;

to regulate and manage the prison system, the execution of sentences and social reintegration services;

to ensure adequate mechanisms for access to the law and to the courts, in particular for the most disadvantaged citizens, in the areas of legal information and legal advice and legal aid, in particular through the Public Defender and other justice bodies and structures;

to create and ensure adequate mechanisms to ensure the rights of citizenship and promote the dissemination of laws and regulations in force;

to organize the cartography and cadastral registry of land and buildings and the registration of real estate;

to ensure, as a means of promoting access to law by citizens and in liaison with the Minister for Legislative Reform and Parliamentary Affairs, a specialized legal translation service responsible for the use of official languages ​​in the areas of law and justice;

to manage and supervise the registration and notarized services system;

to manage the State's real estate assets;

to promote and guide the legal training of judicial careers and other public officials;

to ensure relations at international level in the field of justice policy, in particular with other governments and international organizations, without prejudice to the specific powers of the Ministry of Foreign Affairs and Cooperation;

to establish mechanisms of collaboration and coordination with other government bodies with oversight over related areas.

Under the Ministry of Justice are: Center for Legal and Judicial Training; Criminal Investigation Police; Public Defender.

JSMP Community Legal Education on Sovereign Organs of State & Public Participation in Lawmaking

East Timor Law & Justice Bulletin Warren Leslie Wright
JUDICIAL SYSTEM MONITORING PROGRAMME PROGRAMA MONITORIZASAUN BA SISTEMA JUDISIÁRIU Press Release 31 August 2018

 The Village Chief of Leimea Leten said that information about the role of sovereign organs and public participation in the law making process and access to justice is important and relevant to their daily work in the community

On 23 August 2018 JSMP held training about democracy, the role of sovereign organs, public participation in the law making process and access to formal justice for members of the village council and community members in Leimea Village, Atsabe Administrative Post, Ermera Municipality.

30 people participated in this training, comprising 19 men and 11 women. Most of the participants were members of the village council who were the main target of this training.

The aim of this training was firstly to increase the knowledge of members of the village council and community members who have influence in the community about democracy, the role of each sovereign body, how the public can participate in the law making process and access to formal justice. The second aim of the training was for the participants to pass on what they had learned to other members of the community who did not attend.

"In East Timor society the local authorities, especially members of the village council, conduct a very important role in the community. Therefore it is hoped that this training can further increase their basic knowledge about relevant issues so that they can perform their job better when dealing with issues or problems that emerge in their community in accordance with the law and appropriate mechanisms", said the Executive Director of JSMP, Luis de Oliveira Sampaio.

The training was split into two sessions. The first session focused on democracy, the role of sovereign organs and public participation in the law making process. The second session discussed access to formal justice.

In his opening speech, the Village Chief Mr. Jose de Araujo, stated that this training was very important for the community, especially sub-village chiefs because training like this only happens once a year or once every two years and sometimes not at all. Therefore he asked the participants to take advantage of this opportunity so they can understand how to implement this knowledge when performing their day to day duties and to pass on the knowledge to other members of the community who did not participate in this training.

During the training the participants raised issues relating to the current political situation, in particular the decision of the President to not appoint candidates for government who were involved in criminal cases, and specifically in relation to issues of constitutionality and legality.

Other issues related to charges made by the Public Prosecution Service where in some cases there was a lack of evidence but prosecutors still went ahead with charges. In addition, the participants asked about the work of JSMP to date, especially in relation to JSMP submissions or opinions and they asked if the National Parliament and Government have given consideration to these submissions and opinions.

Also the participants asked about civil cases such as the adoption of children and cases where it is not possible to identify paternity and obtain alimony, which are cases that often occur in their community.

In response to these issues, and specifically relating to the issue of appointment, JSMP explained that these issues related to the competency or interdependence between the sovereign organs because in practice there is often confusion because the Constitution does not provide an official explanation about these provisions.

There was also a discussion about the difference between “the principle of presumption of innocence” and “judicial secrecy”. The presumption of innocence applies throughout the entire process, starting from the investigative stage through to the final decision of the court that carries the full force of the law. The presumption of innocence does not impede the trial process for those that have been official charged by the Public Prosecution Service and appear before the court. Even during the appeal process the presumption of innocence continues to apply and ends when there is a final decision from the highest court, which in Timor-Leste is the Court of Appeal.

Judicial secrecy only applies during the investigative process, especially in cases that are still with the Public Prosecution Service and no official charges have been submitted to the court. When cases are being investigated this information cannot be published or divulged to the public.

Also, the Constitution does not explicitly provide competence to the President to reject candidates for Government, as it only provides the President with the competence to appoint. The President made a decision not to appoint some candidates for government in order to promote good governance based on his conscience and prudence to safeguard national interests and promote the fight against corruption. However, to end the debate on this issue JSMP urges politicians to take the matter to the Supreme Court of Justice.

In relation to the issue of indictments made by the Public Prosecution Service, JSMP responded that the Public Prosecution Service submits charges to the court because based on the conviction that there is sufficient information. This information can only be proven during a trial before the court. When the charges are not proven, the person who has been charged is freed and acquitted from the charges. However the law also allows prosecutors to archive cases where there is insufficient evidence to take the matter to court. It depends on the individual prosecutor's assessment of each case to continue with proceedings or to archive the case.

Regarding JSMP opinions, the participants were informed that even though the National Parliament and Government do not consider all opinions submitted by JSMP, some of the thoughts of JSMP have been taken in consideration by the Parliament and Government. Concrete examples are the Media Law, Law on Procedures for Granting of Pardon and Commutation of Sentences, Law on Ownership of Real Estate, etc.

JSMP explained that in relation to the civil matter of adoption, the civil code provides rules for adoption. In order to adopt the child of another person certain requirements must be met to adopt through a notary, otherwise the adoption will be deemed illegal and the adopted child will have no legal rights to inherit from the adoptive parents.

Regarding cases where paternity cannot be proven to obtain alimony, JSMP explained that when a man and woman separate and no longer wish to be together and such problems occur it is a civil matter and they are free to decide what to do. If a man and woman have a child and if one or both of them abandons the child then they have committed a crime because they have failed to fulfil their obligation to provide food and a request can be made to the Public Prosecution Service to represent the child and for the court to rule on the right to alimony.  However, it is not possible to prosecute the matter when the father who has abandoned his child has not yet been identified or is unknown.

The participants, and the sub-village chief in particular, made positive comments and observations that the information they obtained can help them to deal individually with problems in their community. Without such information they can resolve problems that come before them and then later on be convicted under the law for not reporting a case that should have been processed through the formal justice system. The participants emphasised that cases such as domestic violence should be reported to the police to be dealt with through the formal justice system.

JSMP also interviewed some participants to ask them how important this training was and what they could do for other community members. The participants responded that this training is important because they can obtain a better understanding about the role of sovereign organs, so that when a problem occurs in relation to a criminal matter they don't need to take it to the National Parliament or other sovereign organs, but to the police and the courts in accordance with the existing mechanisms.

Even though this was a full day of training the participants remained interested and enthusiastic to listen, participate and learn.

During the closing session the village chief asked the participants to pass on this information to community members who have not yet had the opportunity to participate in this activity and asked the sub-village chiefs to resolve these problems through the proper channels, as explained in the materials provided by JSMP.

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

For more information, please contact:
Luis de Oliveira Sampaio
Executive Director of JSMP
Email: luis@jsmp.tl
Phone: 3323883

10 September 2018

JSMP: Summary of the trial process at the Baucau District Court - Violence, Domestic Violence, Rape & Murder

Summary of decisions reported by JSMP in Baucau District Court July 2018 Warren Leslie Wright
JSMP has published another qualitatively superior work on the courts. JSMP's commitment to the rule of law in East Timor is outstanding. The reports constitute a valuable resource for research as well as an insight into what is happening in East Timorese daily life. ETLJB applauds and commends JSMP for its works on the law and justice sector in East Timor. Editor ELTJB

1. Crime of Simple offences against physical integrity characterized as domestic violence Case No.: 0003/18. MNMNT Decision After evaluating all of the facts, the court found the defendant guilty of committing the crime based on the facts set out in the indictment. Based on the evidence the court ordered the defendant to pay a fine of US$ 15.00 to be paid in daily instalments of 50 cents for 30 days. The court also imposed an alternative penalty of 30 days in prison if the defendant does not pay this fine.

2. Crime of simple offences against physical integrity Case No.: 00237/18. MNMNT Decision After evaluating the facts the court found the defendant guilty of committing the crime against the victim. The court also considered that the defendant and victim had previously been in a relationship, but at the time of the incident they were no longer in a relationship. Therefore the court modified the charge of simple offences against physical integrity characterized as domestic violence to the crime of simple offence against physical integrity and validated the request to withdraw the complaint.

3. Crime of Simple offences against physical integrity characterized as domestic violence Case No.: 0012/17. BCEVN Decision After evaluating all of the facts, the court found the defendant guilty of committing the crime against the victim. Based on the evidence the court sentenced the defendant to 6 months in prison, suspended for 1 year.

07 September 2018

East Timor President has no constitutional role in State Governance

Unconstitutional conduct by President Lu-Olo East Timor Law Justice Bulletin Warren Leslie Wright Lawyer
Supremacy of Parliament
Reiteration of Argument
I have previously argued that the behaviour of the President of East Timor, Lu-Olo, in relation to the appointment of Ministers of State, specifically, his recalcitrance and intransigence in refusing to appoint the Ministers of State put by the Prime Minister in accordance with Article 106(2) is unconstitutional.

The President has assumed to himself State powers with which he is not constitutionally vested. The result is unstable governance, uncertainty and political tension, unpredictable institutional operations and a generally antidemocratic stalemate that can only be resolved by the other organs of State, the Parliament and the Judiciary.

I have also previously argued that the President's problematical behaviour is a manifestation of an ideology; the political ideology of Fretilin that the Fretilin President is incapable of transcending in the interests of the people who have overwhelmingly rejected Fretilin at the election earlier this year and conferred an indisputable mandate on AMP to govern.

Finally, I have mentioned the possibility of constitutional reforms to take account of the impasses the present constitution has lead East Timor into since 20 May 2002. In particular, Article 106(1) is in need of substantial review and amendment to abolish the concept of minority government.

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