28 February 2009

Decision of a Portuguese judge 'entraps' new UN Police Commissioner in East Timor

Decision of a Portuguese judge 'entraps' new UN Police Commissioner Dili, Timor-Leste Dili, 25 February (Lusa) – According to several sources heard by Lusa News Agency in Dili today, a ruling by the Timor-Leste's Court of Appeal drafted by a Portuguese judge 'entrapped' all the work of Unpol (United Nations Police) and its new Commissioner.

A ruling drafted by a Portuguese magistrate Ivo Rosa in response to an appeal rendered null and void a ruling by Unpol Chief relating to a senior Timor-Leste's National Police (PNTL) officer.

The ruling made by the Court of Appeal in December 2008 annulled a court order to suspend Aderito da Costa Neto, PNTL Baucau district commander.

The suspension of this senior Timorese police officer had been ordered following a proceeding initiated in October 2008 by the then UNPol interim commander, Juan Carlos Areval (from Uruguay) on grounds of “false quality”.

A Portuguese officer, Chief Superintendent Luis Carrilho, is the commander of UNPol as from this week. According to several Timorese and international sources heard by Lusa, the recently-appointed commander found a complex problem on his arrival.

What UNPol and the Timorese authorities fear in common is that the ruling of the Court of Appeal may now be invoked by anyone as a precedent in order to contest any administrative act by the international police.

The issue was discussed by the heads of the United Nations Integrated Mission in Timor-Leste (UNMIT) and the Timorese leadership in January, during a meeting of the High Level Coordinating Committee, where both the Head of State and the Prime Minister have seats.

According to international and Timorese sources familiar with the case, the practical outcome of such discussion was that “the case was kept in silence up until now” because “it was expected that nobody would “pay attention” to the legal implications of the court ruling.

The grounds of the ruling signed by judge Ivo Rosa are based on the fact that the international treaty that establishes the executive responsibility of Unpol over PNTL cannot be applied to the Timorese juridical order.

The Timorese Court of Appeal noted that the Policing Supplementary Agreement, signed between Timor-Leste and the United Nations, “has not been submitted to the Legislative for ratification. It has not been promulgated nor published”.

The agreement was signed on 01 December 2006 between Mr Finn Reske-Nielsen on behalf of the United Nations, and by the then Prime Minister, José Ramos-Horta, currently the President of the Republic, following the establishment of UNMIT by the UN Security Council.

Lawyers consulted by Lusa in Dili confirm the essential of the interpretation made by the Court of Appeal, stating that it is “Timor-Leste that is at fault by not rectifying the Supplementary Agreement” of 2006.

“The problem (after the court ruling) is that, in theory, any PNTL member may invoke the ruling of the Court of Appeal as a precedent in order to appeal against any UNPol decision”, an international police senior office in Dili told Lusa.

“All UNPol work is entrapped, including any decision on the PNTL certification process which is at its final phase”, said the same senior officer, who asked not to be named.

Over three thousand PNTL members have been submitted to a final screening, training and certification process, a task that constitutes a central mission of UNPol in Timor-Leste.

The corollary of this certification process is the phased, and several times postponed, restitution by Unpol of the operational competences of PNTL.

The laconic stance of UNMIT as reflected in replies to several questions made by Lusa is that the Mission “has no doubts whatsoever on the applicability of the Supplementary Agreement in accordance with International Law”.

The ruling of the Court of Appeal was made at a conference of judges by Ivo Rosa, international judge Jose Luis da Goia, and Timorese judge Antonino Gonçalves.

Lusa attempted, albeit in vain, to obtain a commentary from the Presidency of the Republic and the Presidency of the Council of Ministers. PRM Lusa/the end.

Image added by ETLJB: A scene from the mountains in the Sub-District of Bazartete, Liquica District, East Timor.
East Timor Law Journal Blog

East Timor Legal News 26 February 2009

UN presence does not follow spirit of independence Timor Post 26 February 2009 - Extension of the United Nations Integrated Mission in Timor-Leste (UNMIT) in the country has been agreed to by the UN Security Council memebers yet a national NGO known as Luta Hamutuk disagreed with the UN presence because it is in contradiction with the spirit of the Timorese independence.

Process of buying rice is not a measure for corruption: MP Dos Santos Timor Post 26 February 2009 - MP Vital Dos Santos from the Democratic Party (PD) said that the process of importing rice into Timor-Leste should not be considered as part of corrupt practices and said it was not a measure for alleging people of engaging in corruption.

Police financial officer will make appeal to the Court of Appeal Radio Televisaun Timor Leste 26 February 2009 - Former Police Financial Director, Inspector Basilio de Jesus, said he would make an appeal to the Court of Appeal on the recent decision made by the police command to suspend him from the post as he was suspected of being involved in the maladministration of purchasing police vehicles.

Government is committed to protecting land and forest, says Gudinho Radio Televisaun Timor Leste 26 February 2009 - Director for Forestry, Luis Gudinho said the Government was committed to protecting land and forest for the farmers in Timor-Leste.
East Timor Law Journal - Towards the rule of law in Timor-Leste!

East Timor Legal News 25 February 2009

Public Prosecution has sent 12 corruption cases to court: Monteiro Radio Televisaun Timor Leste 25 February 2009 - Prosecutor General Longinhos Monteiro said the total number of corruption cases was 41. However, the Public Prosecution had sent only 12 of the case to court for further legal process.

Monteiro made the comments during a press conference held on Tuesday (24/2) at the Public Prosecution office.

Monteiro stressed that the 12 of the cases were to be sent to the court as they were found as corruption cases whereas 29 other cases considered as maladministration.

He called all on all the ministries and departments to look at maladministration and urged them to take the necessary actions on this matter.

UN to extent mission in Timor-Leste to another year Radio Televisaun Timor Leste 25 February 2009 - President Jose Ramos Horta said the UN Security Council had agreed on the extension of the United Nations Integrated Mission in Timor-Leste (UNMIT) to February 2010.

During the Security Council meeting in New York, President Horta called on the UN Security Council to consider the UNMIT mission by drafting a resolution for the extension of the UNMIT in Timor-Leste. Horta said the UN security members and the ASEAN countries members had
agreed with the extension of the UNMIT mission in the country. Meanwhile, the Report made the UN Secretary General Banki-moon on the stability, development and economy of the country was positive.

UN should look at serious crime committed in 1999: HAK Timor Post 25 February 2009 - Spokesperson for the Timorese Human Right Association (HAK), Edio Saldanha, said much appreciated the extension of the UN mission in East Timor but also urged the UN to pay attention to serious crimes committed by pro-Indonesian militia in 1999.

Saldanha also strongly criticized the UN's failure in taking the 1999's atrocities perpetrators to a tribunal. Saldanha called on the UN to continue holding investigations into these serious crimes against humanity so that the perpetrators could be taken to the court.

The UN should continue holding investigation into the case and ussuing indictments to the perpetrators so that human righst in the country are respected, Saldanha said.

LDP learns affiliating to other political parties Timor Post 25 February 2009 - The Democratic Progressive League (LDP) is currently learning on how to set up a coalition with the Timorese Social Democratic Association (ASDT) party in the run up of the village chiefs elections.

A member of LDP, Hermenegildo Kupas Lopes from the Millennium Democratic Party (PMD), said the LDP leaders had consulted with each other about approaching President of the ASDT Francisco Xavier do Amaral to talk on the coalition.

We will approach the president of the ASDTL seeking ways to set up a coalition, Kupa said.

Bishop calls on the Parliament to end illegal immigration Timor Post 25 February 2009 - Parliamentary President Fernando Lasama Araujo said Bishop Ricardo had called on him to urge the Department of Immigration to take a necessary action to stop illegal immigration and smuggling into the country.

Lasama said the bishop was very concerned about the foreign nationals who had illegally entered the country and were now working and doing business in Timor-Leste.

Lasama stressed that such a situation should not continue otherwise in future the Timorese original citizens would be left behind and there might be no space for them to live.

Monteiro to implement discipline in police force Suara Timor Lorosae 25 February 2009 - Prosecutor General Longinhos Monteiro has pledged to implement strong discipline within the Timorese National Police (PNTL), once he is officially sworn-in.

Monteiro said he would be prioritising implementing discipline in the police force so that police officers would be more professional in future.

"I want to be in PTNL, as I want to implement discipline and I did not ask about rank and salary when I take up the post", Monteiro said.

President has the power to decide future of prosecutor general: Monteiro Timor Post 25 February 2009 - The president has the constitutional power to appoint a figure that would replace the current Prosecutor General said Longuinhos Monteiro who has recently been appointed by the Prime Minister Xanana Gusmao to be the permanent police commander.

To decide future of the country’s prosecutor general is in the hands of President Jose Ramos Horta to determine who will replace me in the future, Monteiro said.

Monteiro also said once he has been inaugurated as the commander of the country's police force , he would be focusing on three important things, making plans, determining the police force’s vision and mission.

Monteiro added he would publicise the things that he would be implementing after the swearing-in ceremony. Meanwhile, Deputy Prosecutor General Ivo Jorge Valente said he had not got any official information about his appointment to replace Monteiro from the country's state bodies.

Chief of villages concern about attitude of social solidarity ministry's officers
Radio Televisaun Timor Leste 25 February 2009 - The chiefs of villages in the Capital of Dili are concerned about the attitude of Future Building Service from the Ministry of Social Solidarity, as they did not appreciate efforts made by the village chiefs in bringing back internally displaced people (IDP) to their homes.

The Mascarenhas Village Chief Luis Gaspar and Bairo-Pite chief Orlando da Costa said the a team from Social Solidarity Ministry called Ekipa Servisu Hari'i Futuru officers had stated that they no longer needed the assistance of village chiefs in returning the IDPs to their homes.

The village chiefs said they would decide to resign from the team and would not join the team again. Orlando added that he was asked by the IDPs to help in reintegrating them with other residents in the Capital, yet if the ministry would not need them anymore, they would make a decision to resign from the team.

Teachers force children to carry woods Radio Televisaun Timor Leste 25 February 2009 - Teachers of the Asalau Primary School of Hatulia, district of Ermera have forced their school children to carry heavy woods from the jungle to the school.

MP Mateus de Araujo from the National Unity Party (PUN) said this was an excessive action against the children and said the teacher had violated the children's rights. Araujo called on the Parliamentary Committee for Education and Health to look at this problem soon by contacting the Ministry of Education.

Araujo added that the children only attended the learning process for four days and another two days - Friday and Saturday - were spent carrying woods.

Image: A market in Dili, East Timor

East Timor Governments holds Public Consultation on draft National Policy on Social and Humanitarian Assistance

MINISTRY OF SOCIAL SOLIDARITY PRESS RELEASE 25 February 2009 MSS holds Public Consultation on draft National Policy on Social and Humanitarian Assistance - On 24 February 2009, the National Directorate of Social Assistance in the Ministry of Social Solidarity held a consultation seminar on the draft National Policy on Social and Humanitarian Assistance. The objective of this seminar was to hear opinions and suggestions on the draft policy for in order to finalise and begin implementation of the policy during 2009.

At the opening of the seminar, the Minister of Social Solidarity, Maria Domingas Fernandes Alves said “through the implementation of this policy, the Ministry hopes to come closer to achieving one of the goals of the IV Constitutional Government of Timor-Leste – that is, to provide social protection to vulnerable groups and vulnerable people in Timor-Leste.”

The Director for Social Assistance, Amandio Amaral Freitas, explained that “the draft social and humanitarian assistance policy aims to safeguard the welfare of the population and improve their living conditions and livelihoods, especially those who are poor and most vulnerable, to meet their basic needs and to develop and promote human dignity and ensure greater social equity.”

As has been noted in many recent reports, poverty is still widespread in Timor-Leste. MSS, together with its donors and partners, is working hard to eradicate extreme poverty for the most vulnerable people in Timor Leste, through its social assistance and humanitarian assistance programmes including:

* MSS social pensions reduce poverty for the elderly & disabled & veterans
* Food assistance to vulnerable families including widows, orphans, disabled and elderly reduces incidence of hunger and food insecurity
* Planned social housing for disabled and elderly living alone to improve living conditions
* Providing shelter and food assistance for displaced persons and victims of natural disasters

At the seminar, productive discussions were held on why further social and humanitarian assistance should be provided, the types of assistance that are necessary, as well as the criteria for determining beneficiaries, and the modes of implementation. DNAS will take into account the contributions of participants in amending the draft policy before sending it out to interested parties for further comments.

In closing the seminar, the Secretary of State for Social Assistance and Natural Disasters, Jacinto Rigoberto Gomes, thanked participants for their useful ideas, opinions and suggestions towards drafting a practical Policy for Social and Humanitarian Assistance. “Implementation of this policy will ensure MSS is well equipped to achieve National Priority 4 of 2009 – social protection and social services. In line with the aims of the 4th Constitutional Government Program, implementation of a good Policy for Social and Humanitarian Assistance will also help reduce social inequalities, and contribute to a significant improvement of the Timorese welfare level.”

UNMIT welcomes new UNPOL Commissioner in East Timor

Dili, 26 February 2008 – Mr. Luis Miguel Carrilho assumed his duties as United National Police (UNPOL) Commissioner of the United Nations Integrated Mission in Timor-Leste (UNMIT) on 23 February 2009.

Mr. Carrilho worked at the office of the President of the Republic of Portugal as the Head of Security, where he was responsible for overseeing the safety and security of the President and his Office. He also served as the Commander of Close Protection of the Security Police in Lisbon, commanding the provision of security protection for national principals and foreign dignities visiting Portugal. In the late 1990s, he worked as the chief of Cabinet of the Director of the Police College in Portugal.

"UNMIT really welcome Mr. Carrilho. He brings a wealth of experience through his distinguished career in law enforcement in his home country and abroad will be the benefits for UNPOL and PNTL," said Mr. Kawakami, DSRSG of UNMIT.

Mr. Carrilho first joined the United Nations in 1996, working primarily on training the civilian police with the United Nations Mission in Bosnia and Herzegovina (UNMIBH) until 1998. 2000-2001 he returned to UN Peacekeeping with the United Nations Transitional Administration in East Timor (UNTAET). Mr. Carrilho with the UNTAET mission served as the Director of the Timor-Leste Police Training College and as Spokesman of the United Nations Police then as the Special Assistant to the United Nations Police Commissioner.

"We, as a team are working in collaboration with all stakeholders in a proactive manner and also in a constructive engagement with peace loving Timorese people. Government and PNTL are irrevocably committed to fulfill UNMIT's mandate within the context of the sovereignty of Timor- Leste," said Mr. Carrilho, UN Police Commissioner of UNMIT.

For more information, please contact UNMIT Spokesperson: Gyorgy Kakuk on +6707230749 or Ivo Santos on +670 7311782 or UNPOL Spokesperson: Donald Awunah on 7230475 and awunah@un.org
See also in this blog: Timor-Leste: the curious case of the fake policemen

East Timor Government assists relocation of 40 IDP families

MINISTRY OF SOCIAL SOLIDARITY PRESS RELEASE 25 February 2009 MSS assists 40 families from Meteorologia IDP camp to return home - On 23 February MSS commenced assisting 40 families from Meteorologia IDP camp to return to their homes. Each of the families was assisted to return with transport provided by IOM. UNPol provided security during the movement from the camps. Each person, including children, also received 16 kg of rice. Those who are eligible to receive a recovery grant from MSS to help them rebuild or repair their homes will receive the money at the BPA.

The Secretary of State for Social Assistance and Natural Disasters, Jacinto Rigoberto Gomes, appealed to chiefs of families to use their recovery grants to rebuild their homes. He reiterated “for families living in IDP camps who did not have a house prior to the crisis, or whose house was not damaged, or for new families which formed in the camp, the government has decided to provide reintegration packages of $200, to help them reintegrate in their communities of return. Where groups of youth were also living together in one tent, and in order to facilitate their safe reintegration from the camp, MSS has also provided $200 per tent.”

The camp manager, Carlito da Silva, apologized to MSS partner agencies and the MSS verification teams for problems caused during the verification process. The camp manager thanked MSS and partner agencies for the assistance they had provided to the camp over the past two and a half years.

The Secretary of State reaffirmed that MSS would only assist those people to return home who were willing and able to return to their communities. “For those who are unable to return because their house is occupied, or there are ongoing issues with the receiving community, please inform the MSS/UNDP Dialogue Teams, and they will try to help you resolve these problems through dialogue.”

In January and February 2009, MSS has already assisted more than 605 families from six IDP camps in Dili to return home. On 27 January, MSS commenced the facilitation of the reintegration of 451 families from the Cathedral camp. On 2 February, MSS assisted 72 families from UIR IDP camp to return home. On 6 February, MSS facilitate the reintegration of 24 families from Bombeiros and 9 families from ex-CVTL camps. On 14 February, MSS assisted 31 families from Dare Lakoto and 18 families from IPI Lahane to return to their homes.

The Minister of Social Solidarity, Maria Domingas Fernandes Alves, and the Secretary of State for Social Assistance and Natural Disasters, Jacinto Rigoberto Gomes, thanked the camp managers at each of the camps for their work over the past two and a half years. They also thanked the SLS agencies – IOM, CRS and CVTL - for providing the camps with humanitarian assistance, and Oxfam, and UNICEF for their water and sanitation support to the camps over the past two years.

With the return of IDPs from Meteorologia, Cathedral, UIR, Bombeiros, ex-CVTL, Dare Lakoto, and IPI Lahane more than 12,400 IDP families will have received a recovery or reintegration package under the Hamutuk Hari’i Futuru National Recovery Strategy. A total of 62 IDP camps have been closed. Four camps remain open in Dili. MSS hopes to close these four camps by the end of March 2009.

Renewal of United Nations Mission Mandate in Timor‑Leste

27 February 2009 The Hon Stephen Smith MP AUSTRALIAN MINISTER FOR FOREIGN AFFAIRS Renewal of United Nations Mission Mandate in Timor‑Leste - I very much welcome the United Nations Security Council decision to renew the United Nations Integrated Mission in Timor-Leste mandate until 26 February 2010.

The United Nations continues to play a critical role in promoting stability, human rights, democracy and the rule of law in East Timor. Together with the United Nations, Australia will continue to support East Timor’s long-term development.

The United Nations mandate authorises a phased hand-over of policing responsibilities from United Nations to East Timorese police. As this happens, a supporting UN Police presence will remain important. The UN mandate recognises this as a priority.

Australia contributes 50 police to the United Nations Police in East Timor. The Australian-led International Stabilisation Force works closely with the United Nations presence in East Timor.

East Timor continues to make progress in addressing its challenges, including building the capacity of its police force and resettling internally displaced persons.

Media inquiries: Mr Smith's office 02 6277 7500 - Departmental Media Liaison 02 6261 1555

27 February 2009

Timor court decision could promote culture of impunity: Opposition

ABC Radio Australia Connect Asia Timor court decision could promote culture of impunity: Opposition Updated February 26, 2009 11:11:09 - East Timor's President Jose Ramos-Horta was in New York recently asking the United Nations Security Council to extend its mission in the fledgling nation.

The U-N will make that decision today but it will do so amid a cloud of doubt surrounding the legitimacy of its police presence in the troubled nation. A 1,500-strong international police force was given authority over East Timor's internal security force in 2006, after tensions between the police and military led to deadly violence. However, a recent decision by East Timor's highest court has found the the agreement between the East Timorese government and the United Nations Police non-binding and unconstitutional. East Timor's Opposition says the court's decision is alarming, and could lead to a culture of impunity within the fledgling police force.

Presenter: Stephanie March
Speaker: Bu Wilson, East Timor researcher from the Australian National University

* Listen:

MARCH: In East Timor it's being called the case of the fake policeman.

An East Timorese police officer who refused to comply with a suspension order from the United Nations Police Commander and went back to work, was accused and convicted of a false identity crime - for impersonating a cop.

East Timor's court of appeal recently overturned that decision, saying the UN police commander was not in a position to suspend the officer, as it found an agreement between the government and UN was not constitutional, casting doubt over exactly who, is the fake policeman.

East Timor researcher from the Australian National University Bu Wilson says the court's decision could leave the door open for challenges to the actions of the U-N police over the past two years.

WILSON: In theory what it can actually mean that all the executive policing decisions that have been made by the United Nations Police including arrests, including suspensionsis potentially not legally valid.

MARCH: The East Timorese constitution says all treaties and conventions between the government another body must be ratified by the parliament.

However, Government spokesman Agio Pereira says what that means exactly ... is unclear.

PEREIRA: East Timor still lacks a law that outlined the details of what kind of conventions and treaties or other documents need to be ratified by the parliament.

MARCH: The government says it's now working with the United Nations on a new agreement.

However, East Timor's Opposition spokesman Jose Teixeira says the court's decision could have implications beyond the case of one police officer.

TEIXEIRA: The important issue here is that it may create some level of impunity amongst police officers who may feel that now they are not under anyone's disciplinary action.

MARCH: Academic Bu Wilson says power struggles and logistic challenges have caused relations between the U-N police and the local force - known as the PNTL - to deteriorate.

WILSON: For a very long time they were not actually co-located so you had the UN police doing their thing in one place, and the PNTL doing their thing in another place with very little cooperation.

MARCH: The United Nations hopes to gradually hand back responsibility for internal security to the local force in the first half of this year.

But academic Bu Wilson says there is little evidence attempts to reform the PNTL have been effective.

WILSON: The Timorese police are still not a strong institution, they are not a particularly accountable institution, and they are also deeply factionalised. So, I think it's not a strong institution and I think the potential for it to unravel and the potential for conflict with the army is always there.

Timor-Leste: the curious case of the fake policemen

26 February 2009

East Timor Press Freedom and Defamation in relation to the Applicable Law

East Timor Judicial System Monitoring Program East Timor Press Freedom and Defamation in relation to the Applicable Law 26 February 2009 DILI - Press freedom is a crucial issue in Timor Leste at the moment because it raises important questions about what type of restrictions on the press can be accepted. There is a complex debate about principles of press freedom and equality before the law as well as principles of democracy and the rule of law, namely should total press freedom be allowed or should the applicable law place restrictions on the press. The importance of this issue is evidenced by the many cases that have emerged and have been forwarded to the formal justice sector basically relating to members of the press who have been accused of committing defamation.

Based on information in the possession of JSMP, several individuals have initiated criminal proceedings against the press as an institution and against several journalists as individuals in relation to the reporting of information perceived to be defamatory. In the very least these circumstances have shocked the press in TL, because the press as an institution has been found guilty by the courts and has been ordered to restore the reputation of aggrieved parties and pay compensation for reporting considered to be defamatory (Case of Bambang vs. STL). Several other cases are still being processed and investigated (a case made against Timor Post, and a case involving the Minister of Justice vs. Tempo Semanál and its journalist). These developments pose a significant question: can a journalist be charged for performing his job? Or should the press be given full assurance that it is free from liability (both criminal and civil) when a member of this profession is performing his job? Or should any legal process (criminal or civil) initiated against a journalist be considered as an attempt to limit press freedom? Or has the press in Timor Leste failed to adhere to standards of professional reporting and is it irresponsible disrespectful of values governing the reporting of information? These questions are of great interest because they encompass both press freedom and defamation.

Freedom of speech as well as the distribution of information through the media is clearly protected under Articles 40 and 41 of the RDTL Constitution, Article 19 of the International Covenant on Political and Civil Rights and Article 19 of the International Declaration of Human Rights which deal with freedom of expression and the freedom of information, as well as freedom for the press and the mass media.

However we must acknowledge that members of the press are also ordinary citizens who have to adhere to the applicable law. In this regard, the principle of equality before the law dictates that all citizens have the same rights and shall be subject to the same duties. This includes journalists who as members of the press are granted equal status under Article 16 of the RDTL Constitution. Therefore, members of the press are not excluded or granted immunity as legal subjects and have to adhere to the applicable law in Timor Leste. Nevertheless this doesn’t mean that press freedom is restrained by the law.

A concern arises when press reporting is used as a means to defame or slander a person or institution without any consideration if the article is newsworthy or not, and such reporting is deliberate and negligent as thus fulfils the elements of a criminal act. Therefore, what needs to be highlighted here is that the law must be applied to any party who intentionally defames or slanders another through the press. There is a tendency emerging in Timor Leste for various parties to try and have members of the press held liable through criminal and civil proceedings.

The freedom of the press to express an opinion or thought is an absolute right provided for in the Constitution and relevant international conventions ratified by Timor Leste. However, this should not be construed as an absolute freedom without any restriction. Other legal measures are necessary to prevent the press from being misused to defame, insult, slander or abuse others. These measures are not aimed at restricting the press but rather to ensure that the press is more professional and responsible and respects the applicable law and the human rights of all individuals as set out in the Constitution and international conventions ratified by Timor leste.

In 2000 the UNTAET administrator exercised his executive authority and issued Executive Order No. 2/2000 which basically revokes Articles 310-321 of the Indonesian Penal Code on defamation. This means that defamation no longer constitutes a criminal act and cases of defamation or slander can only be processed through civil proceedings. After the aforementioned executive order came into effect the Office of the Public Prosecutor lodged an appeal with the Court of Appeal in a case of defamation and in response the Court of Appeal issued decision No 46/04 dated 15 September 2004 (Ivo Valente, STL, January 2009) stating that the executive order did not have the legal authority to revoke or supersede the articles on defamation set out in the Indonesian Penal Code, based on the hierarchy of laws and the principle of Lex Superior derogate Lex Inferior. Pursuant to the aforementioned decision issued by the Court of Appeal defamation/slander is still a criminal act in the current legal system of Timor Leste. However, the aggrieved party can choose to pursue civil proceedings (because defamation is a crime on complaint unless the aggrieved person is a public servant). In this context, with reference to the hierarchy of laws and the principle of Lex Superior derogate Lex Inferior, defamation is still a crime that can be charged until such time that other legislation is enacted.

Articles 310 to 321 of the Indonesian Penal Code deal with defamation, slander and abuse resulting from press reporting. These articles clearly prescribe the criteria for the criminal act of defamation. These articles prescribe maximum penalties ranging from four months to four years imprisonment. These severe penalties will be handed down if the elements of a respective article on defamation are fulfilled. An additional provision in the articles relating to the criminal act of defamation provides the person suspected of defamation to prove the truth of his accusations, and if such accusations are not proven then he will be found guilty of the criminal act of slander. If the criminal act of slander is conveyed via the print media then it will fulfill the existing elements for this charge. Therefore, in principle the Indonesian Penal Code provides adequate protection for press freedom as it provides an opportunity to the person suspected of defamation or slander to prove the validity of his accusations, or when defamation or slander is committed through the print media then the journalist reporting this information can be given an opportunity by the judge to prove the truth of his report.

If the journalist accused of defamation or slander can prove that his report was accurate then he can not be found guilty of defamation or slander. On the other hand, if the decision of the judge carrying full force of the law states that the accusations made against the aggrieved party have not been proven then the aggrieved party is thereby exonerated from these accusations and the decision itself is unadulterated proof that the accusations are not true.

Based on the aforementioned analysis we can deduce that press freedom, in the sense of expressing a thought or a piece of news, continues to be protected, however this does not mean that members of the press are not liable to criminal charges according to the applicable law. When the press is used as an instrument to commit defamation or slander then the perpetrator can certainly be held criminally liable in accordance with the applicable law. Therefore the press as a medium for information is not held criminally liable, rather the individual perpetrator that utilizes or takes advantage of the press for unlawful purposes is the one who is held criminally liable. Therefore the individual is put on trial, not the press. To establish the criminal act of defamation or slander committed through the press it must be shown that the perpetrator intentionally carried out the criminal act and was found guilty. Therefore the criminal proceedings are not focused on the press report itself but rather on the act of committing defamation or slander.

In addition to the provisions contained in the Indonesian Penal Code, Article 12 of the International Declaration of Human Rights also states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”. The same protection is provided in Article 36 of the RDTL Constitution, namely that “every individual has the right to honor, good name and reputation, protection of his or her public image and privacy of his or her personal and family life”.

JSMP believes that the freedom of the press is an absolute right protected and guaranteed by law as set out in Articles 40 and 41 of the RDTL Constitution, Article 19 of the International Convention of Civil and Political Rights and Article 19 of the International Declaration of Human Rights which prescribes the freedom of expression and information as well as freedom of the press and mass media. Nevertheless, members of the press also have to respect the honor and good name of a person as prescribed in the Constitution, Article 19 of the International Declaration of Human Rights and Article 19.2 and 19.3 of the International Convention of Civil and Political Rights as well as other subsidiary law. Therefore legislators have achieved the outcomes they anticipated when they drafted these laws, namely to ensure harmony and order in society, as well as peace and stability, whereby the law equally applies rights and duties to all members of society, and distributes authority and provides for legal remedies whilst maintaining legal certainty.

For more information please contact: Roberto da Costa Pacheco Coordinator of Legal Research, JSMP Email: bebeto@jsmp.minihub.org Landline: 3323883
1999 East Timor Crimes Against Humanity

25 February 2009

East Timor Appeal Court slams politically-motivated removal of judge


Appeal Court slams politically-motivated removal of judge

Timor-Leste's Court of Appeal has strongly criticised the Gusmao government–appointed Superior Council for the Judiciary for blocking the reappointment of a senior judge who ruled against key elements of the government’s 2009 budget.

The Court of Appeal upheld an appeal by Judge Ivo Rosa, a Portuguese national, who argued that the Superior Council for the Judiciary unlawfully and unconstitutionally decided not to renew his contract of service in Timor-Leste. The SCJ oversees the functioning and composition of the judiciary

The Court of Appeal said the SCJ's move against Judge Rosa was “manifestly arbitrary and contrary to the law”, appeared “motivated by political reasons” and left international judges “vulnerable to pressures and persecutions”.

The SCJ decision “violates the principle of immovability of judges” laid down by the law and constitution and “has no grounds whatsoever”, the Court of Appeal said.

Judge Rosa was one of three foreign judges recruited by the United Nations to serve alongside seven Timorese judges in Timor-Leste.

The SCJ decided not to renew Judge Rosa's contract soon after he and other members of the Court of Appeal unanimously declared on November 13 last year that:

a) The government's creation of a so-called Economic Stabilization Fund was unconstitutional in that it was equivalent to creating a "secret fund" which is expressly prohibited by the constitution, and

b) Parliament's attempt to transfer more than US$396 million from the National Petroleum Fund was illegal as it breached key aspects of the law mandating sustainable use of petroleum revenue.

Prime Minister Gusmao and the President of the National Parliament, Fernando “Lasama” de Araujo publicly criticised the judgement, and foreign judges in particular. In the days following the court’s budget ruling Mr de Araujo was reported by the state-owned television broadcaster as saying that it was “time the government brought the Court of Appeal into line.”

FRETILIN deputy parliamentary leader Francisco Branco said today the decision not to reappoint Judge Rosa was initiated in the SCJ by the Council’s interim head, Dionisio Babo Soares, with the support of SCJ substitute member Cirilio Cristovao.

Branco said: “Mr Soares is Secretary-General of Xanana Gusmao's CNRT party and was national campaign director for the CNRT during the last election. Mr Cirilio Cristovao is an advisor in the PM’s office.

"Mr Gusmao has stacked the SCJ with his trusted political allies and advisors who appear to have done his bidding by effectively removing a judge who had the temerity to rule against the government.”

The Court of Appeal found that Cirilio Cristovao should not have taken part in the SCJ meeting which decided to remove Judge Rosa, because Dionisio Babo, the person for whom he was a substitute, was already present. The Court of Appeal said: “The wrongful participation by Cirilio Cristovao in the decision of the SCJ not to renew the appellant’s contract renders it a null and void act.”

Francisco Branco said: “The Court of Appeal has issued a damning indictment of the SCJ and Parliament must now examine the negative role it played in relation to Judge Rosa.

“The Court of Appeal ruling is a positive step to try to reinstate principles of judicial independence and the rule of law which are under attack in our country," said Branco.

“However there is information that the government is now planning to remove the President of the Court of Appeal, Judge Claudio Ximenes, who is now in Portugal recovering from an illness, and replace him with a more malleable or accommodating judge.

“Such a move would be intolerable and damage the credibility of our justice system beyond repair.”

Branco said the three Court of Appeal judges who unanimously upheld Judge Rosa’s appeal were all Timorese.

“The judges’ nationality should not matter, but we point it out because the Gusmao government has tried to discredit foreign judges when any court decision goes against it,” Branco said.

For information contact or Jose Teixeira on +670 728 7080

Etracts from the translation by FRETILIN of Court of Appeal judgment.

24 February 2009

East Timor Legal News 24 February 2009

Monteiro optimistic about commanding the East Timor police force Radio Televisaun Timor Leste 24 February 2009 - The new appointed police commander, Longinhos Monteiro, said he was optimistic about leading the Timorese National Police (PNTL) to be more professional in future.

I have a lot plans and hoping that I would implement them all, as PNTL
has proper hierarchy system and this is not a major challenge for me,
Monteiro said.

Monteiro also said in leading an institution to achieve its goals was depending on loyalty to the institution and the country.He added that the opposition parties’sconcerns about his appointment would not be a challenge to him to take up the post.

I was removed by political sphere in justice sector: Judge Ivo Rosa Suara Timor Lorosae 24 February 2009 - Portuguese Judge, Ivo Rosa, said legal system in Timor-Leste was not independent, because there was strong political sphere found in judiciary of the country.

Rosa said the Timorese political leaders removed him through the Superior Council for the Judiciary and said this was a political sphere. Ivo Rosa was the judge of the Court of Appeal who was removed by Timor-Leste's Superior Council for the Judiciary recentlys.

Suspects deny allegation of attempted sexual assault Radio Televisaun Timor Leste 24 February 2009 - The two suspects of the recent sexual assault attempt of two under-age girls in Holarua of Manufahi have denied the allegation saying it was untrue.

The suspects said the allegation made by the victims was untrue and said they had never attempted to have sexual intercourse to these two girls, but they only beat them up, because [the victims] broke the suspects home-made seats.

Police Commander of Manufahi, Miguel Faria said the two suspects were now under the house arrest for the initial hearing in the court.

The incident happened on Monday (16/2) early morning when the two victims were on their way homes from a traditional-corn harvest ceremony in Holarua village of Manufahi.

Call for New Zealand military force and police to stay in Timor Radio Televisaun Timor Leste 24 February 2009 - President Jose Ramos Horta has called for the New Zealand Government to continue deploying its soldiers and police in Timor-Leste, as the country’s situation is still volatile. The President also called on the NZ police to professionalise the Timorese police officers.

UN is committed to supporting the Government Diario Nacional 24 February 2009 - Representative of the United Nations Integrated Mission in Timor-Leste (UNMIT) Akbar Many said the UN was committed to supporting the Timorese Government, especially to help support judicial system of the district courts.

Many congratulated the Timorese prosecutors on their successful works and said the UN would still continue supporting other sectors which important in the field of justice administration.

During a speech marking inauguration for the Public Prosecution Office in Baucau, Many said the UN particularly the United Nations Development Program (UNDP) was proud of making efforts to contribute to the country?s development.

Stability will increase if the judicial sector is developed and keep looking forward to seeking for solution to reduce criminal action in the country,? Many said.
Image: East Timor's new police commander, Longinhos Monteiro.

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JSMP : The Suai Police Investigations Unit is not cooperating effectively with the Court

Judicial System Monitoring Program DILI 24 February 2009 - The Suai Police Investigations Unit is not cooperating effectively with the Court

Between the 9th and 13 February 2009 JSMP conducted monitoring of trials at the Suai District Court which has jurisdiction over Same, Ainaro, Bobonaro and Suai.

During the aforementioned period the Suai District Court was scheduled to try eight (8) cases. The court issued summons to victims, witnesses and defendants through the police investigations unit. However the court was only able to try three (3) cases because the written summons provided to the police investigations unit were not delivered to any of the parties required to attend the trials, namely the witnesses, victims and defendants.

The reason why these court summons were not delivered to the relevant parties by the police investigations unit was because the police did not know for sure the addresses of the aforementioned parties.

During one hearing the presiding judge complained about the police investigations unit and reminded them to collaborate effectively with the court to ensure that cases scheduled for trial were not delayed unnecessarily. The aforementioned judge made this complaint because he believed that the police investigations unit did not take responsibility for the summons issued by the court that were supposed to be delivered to the relevant parties, namely witnesses, victims and defendants and/or because the police have absolutely no understanding about the law.

Also, in one case a Suai District police officer had been summoned to attend court but he did not wish to cooperate and had on four (4) occasions ignored court summons. The presiding judge in this case will issue a warrant for his arrest if the said police officer, who is the defendant in this case, fails to attend the next scheduled hearing to enable the trial to continue and for justice to be provided to the victim.

Recalling that the Suai District Court often faces such problems, JSMP believes that the police assigned to the investigations unit should be equipped with copies of all of the applicable laws in Timor Leste so that they will always be prepared to cooperate with the courts and when one member of the police assigned to the investigations unit is transferred to another area there should be a hand over of duties to the new officer so that work requiring immediate attention is not neglected and can be dealt with efficiently.

JSMP also recommends for the government to not only address the working conditions of judicial actors, namely judges, prosecutors and public defenders, but also the government should naturally address the needs of the police, especially the investigations unit so that the judicial system in Timor Leste can meet everybody’s expectations, because the work of the police investigations unit compliments the work of all judicial actors, which essentially is aimed at providing justice in all cases, recalling that police provide law enforcement in the community to protect all of the citizens of this nation.

For more information please contact: Roberto da Costa Pacheco Coordinator of the Legal Research Unit, JSMP Email: bebeto@jsmp.minihub.org Landline: 3323883
Polisi Unit Investigasi Suai kurang Kolaboratif dengan Pihak Pengadilan Februari 2009

JSMP selama seminggu mulai dari tanggal 9 s/d 13 Februari 2009 melakukan monitoring terhadap peradilan atau persidangan di Pengadilan Distrik Suai yang mencakupi wilayah juridiksi Same, Ainaro, Bobonaro dan Suai.

Selama seminggu tersebut seyogianya Pengadilan Distrik Suai mengadili delapan (8) kasus yang telah dinotifikasi oleh pihak pengadilan kepada para korban, saksi dan pihak terdakwa sendiri melalui kepolisian terutama bagian atau unit investigasi. Namun pihak pengadilan hanya dapat mengadili tiga (3) kasus karena surat notifikasi yang diberikan oleh pihak pengadilan melalui kepolisian unit investigasi tidak disampaikan kepada pihak yang akan diadili kasusnya entah itu saksi, korban, maupun terdakwa sendiri.

Alasan mengapa surat notifkasi yang telah diberikan oleh pengadilan pada pihak yang berkepentingan atas kasusnya melalui kepolisian bagian atau unit investigasi tidak sampai pada tangan para saksi, korban, atau terdakwa karena pihak kepolisian bagian investigasi tidak mengetahui secara jelas alamat dari para pihak yang berkepentingan tersebut.

Dalam intervensinya hakim yang memimpin persidangan sempat menyampaikan keluhannya pada kepolisian terutama bagian investigasi untuk bekerja sama/bersikap kolaboratif dengan pihak pengadilan agar tidak terjadi masalah pending terhadap kasus yang seharusnya dapat segera diselesaikan, hakim tersebut berargumen demikian karena menurut pengamatannya pihak kepolisian bagian investigasi tidak merasa mempunyai kepentingan terhadap surat notifikasi yang diberikan oleh pihak pengadilan untuk diberikan kepada pihak-pihak yang berkepentingan seperti saksi, korban, dan terdakwa. Dan atau memang tidak mempunyai pengetahuan sama sekali terhadap hokum.

Sedangkan untuk salah satu kasus yang melibatkan salah seorang anggota polisi distrik suai ketika dinotifikasi oleh pihak pengadilan untuk menghadiri peradilan terhadap kasusnya tidak mau bekerja sama dengan pengadilan dengan mengabaikan surat notifikasi tersebut sebanyak empat (4) kali, sehingga hakim yang memimpin persidangan untuk kasus tersebut mengeluarkan perintah penangkapan jika sidang berikutnya terdakwa yang nota bene adalah seorang anggota polisi tidak mau mengikuti persidangan terhadap kasusnya agar persidangan dan keadilan terhadap korban tetap terus berjalan.

Melihat semua masalah tersebut diatas yang sering dihadapi oleh pihak Pengadilan Distrik Suai maka JSMP berpendapat bahwa sudah seharusnya polisi yang bertugas dibagian investigasi dibekali tentang system hokum yang berlaku di Timor Leste agar senantiasa dapat bekerja sama dengan pengadilan, dan jika ada pemutasian terhadap para anggota polisi yang bertugas di bagian investigasi maka sudah seharusnya juga ada hand over kepada para petugas polisi yang baru terhadap tugas baru tersebut sehingga tidak terjadi kevakuman pekerjaan yang seharusnya dapat segera diselesaikan.

JSMP juga merekomendasikan kepada pihak pemerintah agar tidak hanya memperhatikan kondisi kehakiman semata dalam hal ini pihak hakim, Jaksa dan Pengacara Umum namun sudah sewajarnya juga memperhatikan kondisi kepolisian terutama bagian investigasi agar system peradilan di Timor Leste dapat berjalan sesuai dengan apa yang diharapkan oleh semua orang, karena pihak kepolisian bagian investigasi juga ada dalam satu paket yang sama dengan semua actor pengadilan guna menemukan keadilan yang seadil-adilnya terhadap semua kasus, sebab sesuai dengan fungsinya bahwa polisi juga merupakan penegak hokum dalam masyarakat yang dapat mengayomi seluruh insane di Negara ini.

Untuk informasi lebih lanjut hubungi: Roberto da Costa Pacheco Coordinator Legal Researcher Unit, JSMP Alamat e-mail: bebeto@jsmp.minihub.org Landline: 3323883
Image added by ETLJB: Officers of the East Timor National Police force.

Summary of Criminal Cases Tried by the Suai District Court

East Timor Judicial System Monitoring Program DILI - Summary of Criminal Cases Tried by the Suai District Court February 2009

JSMP conducted monitoring for five days at the Suai District Court (SDC) between the 9th and 13th February 2009 to oversee both criminal and civil cases, however only criminal cases were tried during the aforementioned period. Eight criminal cases were scheduled for trial during this period however hearings only took place in three criminal cases, one of which included a marathon trial that culminated in a final decision. All of these cases related to maltreatment.

The reason why only three of the original eight scheduled cases were eventually tried was because defendants, witnesses and victims were not notified by the court because the court did not know their whereabouts. What is of concern to JSMP and others seeking justice is the lack of coordination between the investigative section of the police and the court to ensure that court summons are delivered to witnesses, victims and defendants.

The following cases could not be tried by the Suai District Court (SDC) during the aforementioned period: No. 50/Pen/2008/PDS, No. 113/Pen/2008/PDS, No. 18/Pen/2008/PDS (these three cases related to maltreatment). Another two cases were scheduled but JSMP was unable to obtain the case numbers because the defendants, witnesses and victims did not appear in court.

More information has been provided below on the criminal trials that were observed by JSMP between the 9th and 13th February 2009 at the Suai District Court

Case No. 103/Pen/2008/PDS

On Tuesday 10/02/2009 The Suai District Court tried a case of light maltreatment committed by the defendant SG against the victim SA who is the Principal at a Junior High School in the District of Suai. This incident of maltreatment was committed by the defendant SG on 22 August 2007 as outlined in the prosecutor’s indictment read out by the judge in the court room.

The incident occurred because the younger sibling of the witness AA and a friend JA falsified their report books including the signature of the principal who was the victim in this case. Normal teaching activities continued at the school until one month later when the school found out that the report books had been falsified by AA and JA. One of them was expelled from school; however the other one was not expelled because he was related to one of the teachers.

At his own initiative the defendant SG met with the victim SA who was the principal of the aforementioned school and the victim immediately started abusing the defendant who became angry and slapped the victim on the ear causing bruising. After hearing the testimony of the defendant the court summoned the witness JA who is a teacher at the school.

The witness JA confirmed in his testimony that on 22 August 2007 the defendant was at the school and committed maltreatment against SA; however the witness did not know why the defendant committed this act. The witness also explained that the defendant only slapped the victim once on the ear and did nothing else and as a result of the maltreatment the victim received outpatient treatment at the Suai Hospital but he was able to continue his normal activities.

After hearing testimony from the witness the court accepted a request from the prosecutor to decide not to summon any more witnesses because enough information had been provided and the court immediately proceeded to the next stage of the trial, namely to hear the prosecutor’s final recommendation in this case. The prosecutor recommended for the court to examine all the facts of the case and issue a fair decision against the defendant. In his final statement the public defender requested for the court to carefully examine the case and issue a fair decision against the defendant, recalling that the defendant was currently studying in a private university in Dili.

The trial was adjourned until 12 February 2009 for the pronouncement of the final decision in this case. On 12 February 2009 at 10:27am the decision was announced by the presiding judge who found the defendant guilty of committing the act of maltreatment in violation of Article 351.1 of the Indonesian Penal Code that carries a maximum sentence of two years imprisonment, however the judge took into account that the defendant was a student who needs to continue his studies and also that the defendant was cooperative during the trial. The defendant was sentenced to six months imprisonment to be suspended for a period of one year pursuant to Article 14.a of the Indonesian Penal Code and the defendant was ordered to pay $10 to the defendant.

Case No. 100/Pen/2009/PDS

On Wednesday (11/02) the Suai District Court tried a case of light maltreatment committed by the defendants TA and JT against the victim MCG on 4 September 2007 in Tali Oan. In their testimony the defendants TA and JT Based admitted all of their actions against the victim and accepted all of the charges read out by the court against them. They committed maltreatment against the victim because the victim ridiculed and abused the defendant TA for no reason at all one day before the incident, namely on 3 September 2007, and the defendant was unhappy with the argument that took place, so on the following day the defendant asked the defendant JT to join him and wait for the victim who was returning home from school.

The presiding judge felt that it was not necessary to hear testimony from other witnesses because the defendants accepted all of the charges made by the prosecutor. The prosecutor and the public defender agreed with the court’s decision not to hear any further testimony and the court proceeded to the next stage which was to hear the final statements of both parties. In his final recommendation the prosecutor maintained his original charges as read out to the court previously, namely that the defendants’ actions violated Article 351.1 of the Indonesian Penal Code and the prosecutor recommended for the court to sentence the defendants in accordance with the aforementioned article with consideration to mitigating circumstances presented during the trial. The public defender requested for the court to issue a fair decision and stated that the actions of the defendants did not cause any long lasting physical suffering.

The court decided to adjourn this trial until 18 February 2009.

For more information please contact: Roberto da Costa Pacheco Coordinator of Legal Research, JSMP E-mail: bebeto@jsmp.minihub.org Landline: 3323883


Intisari Kasus Pidana yang disidangkan di Pengadilan Distrik Suai Februari 2009

JSMP selama lima (5) hari berada di Pengadilan Distrik Suai (PDS) yaitu pada tanggal 9 s/d 13 Februari 2009 guna melakukan kegiatan monitoring atau pemantauan terhadap persidangan kasus baik pidana maupun perdata namun setelah sampai disana persidangan dilakukan hanya untuk kasus pidana. Jumlah kasus yang akan disidangkan pada periode itu seyogianya terdapat delapan kasus pidana namun pada kenyataannya hanya tiga kasus pidana yang disidangkan dan satu kasus disidangkan secara marathon pada periode itu sampai pada putusan akhir. Tipe kasus yang disidangkan tersebut juga sama yakni tipe penganiayaan.

Alasan mengapa dari delapan kasus yang dijadwalkan untuk disidangkan hanya tiga kasus yang terealisir sidangnya itu disebabkan oleh para terdakwa dan saksi serta korban tidak dapat dinotifikasi oleh pihak pengadilan karena keberadaan mereka tidak diketahui oleh pihak pengadilan dan alasan yang sangat memprihatinkan JSMP dan pencari keadilan adalah bahwa pihak kepolisian bagian investigasi kurang berkolaborasi maksimal dengan pihak pengadilan guna memberikan surat notifikasi yang diberikan oleh pengadilan lewat mereka untuk para saksi, korban dan juga terdakwa sendiri.

Nomor kasus yang tidak sempat disidangkan oleh Pengadilan Distrik Suai (PDS) pada periode ini adalah sebagai berikut, No 50/Pen/2008/PDS, No 113/Pen/2008/PDS, No 18/Pen/2008/PDS (ketiga perkara tersebut merupakan kasus penganiayaan) dan dua kasus lagi yang seyogianya akan disidangkan namun juga tidak terealisir nomor kasusnya JSMP tidak sempat mendapatkanya karena pada hari tersebut semua terdakwa dan para saksi maupun korban sendiri tidak hadir di Pengadilan.

Untuk mengetahui secara jelas tiga kasus pidana yang sempat disidangkan pada periode tersebut yang dipantau oleh JSMP dari tanggal 9 s/d 13 Februari 2009 sebagai berikut:

No.Perk. 103/Pen/2008/PDS

Pada hari Selasa tanggal 10/02/2009 Pengadilan Distrik Suai mengadili kasus pidana penganiayaan ringan oleh terdakwa SG terhadap SA yang berprofesi sebagai Kepala Sekolah salah satu SMP di Distrik Suai. Kejadian kasus penganiayaan yang dilakukan oleh terdakwa SG tersebut terjadi pada tanggal 22 Agustus 2007 sesuai dengan tuntutan dari Kejaksaan yang dibacakan oleh Hakim diruang persidangan.

Kejadian ini terjadi karena disebabkan oleh adik dari pada salah seorang saksi yang berinisial AA serta temannya berinisial JA melakukan pemalsuan buku raport dan tanda-tangan dari kepala sekolah yang menjadi korban tersebut. Sebulan setelah pemalsuan buku raport tersebut berlangsung dan proses belajar mengajar pun berjalan lalu pihak sekolah mengetahui bahwa yang bersangkutan AA beserta temannya JA melakukan pemalsuan buku raport dan salah seorang dari mereka langsung dikeluarkan dari sekolah tersebut namun yang satunya tidak dikeluarkan karena dengan alasan bahwa masih mempunyai hubungan dengan salah seorang guru yang mengajar di sekolah tersebut.

Oleh karena itu terdakwa SG berinisiatif untuk bertemu dengan korban SA yang menjabat kepala sekolah dan langsung dicaci-maki oleh korban sehingga terdakwa tidak menerima tindakan tersebut lalu membalasnya dengan tamparan tepat pada pohon telinga dari korban sehingga mengakibatkan memar. Setelah mendengarkan keterangan dari terdakwa pihak pengadilan menghadirkan salah seorang saksi berinisial JA yang berprofesi guru pada sekolah yang bersangkutan.

Saksi JA dalam memberikan kesaksiannya membenarkan bahwa memang benar pada tanggal 22 Agustus 2007 berada di sekolah tersebut dan melakukan penganiayaan terhadap SA namun saksi tidak mengetahui alasan dari terdakwa melakukan tindakan penganiayaan tersebut. Saksi juga menjelaskan bahwa terdakwa hanya sekali menampar tepat di daun telinga korban dan tidak lebih dari itu dan akibat dari penganiayaan tersebut korban melakukan rawat jalan di rumah sakit Suai, namun tetap melakukan aktivitasnya seperti biasa pada waktu itu.

Setelah mendengar semua keterangan dan kesaksian dari seorang saksi pihak pengadilan berdasarkan usulan dari Jaksa Penuntut Umum yang mengatakan bahwa tidak perlu lagi mendengarkan kesaksian dari saksi lain karena sudah merasa cukup dengan keterangan dan kesaksian itu maka pihak pengadilan langsung melangkah pada sesi berikutnya yakni mendengarkan tuntutan secara lisan terhadap terdakwa dalam kasus ini. Dan pihak Kejaksaan dalam tuntutan akhir secara lisan meminta kepada pihak pengadilan untuk melihat semua fakta terhadap kasus tersebut dan menjatuhkan hukuman yang seadil-adilnya terhadap terdakwa.

Sedangkan Pembela dalam membela terdakwa pada pembelaan akhir secara lisan mengatakan bahwa pengadilan haruslah melihat kasus ini secara jeli dan jika menjatuhkan hukuman pengadilan harus menjatuhkan hukuman yang seadil-adilnya, mengingat juga bahwa terdakwa untuk saat ini sedang melanjutkan studinya di salah satu perguruan tinggi swasta yang berada di Dili.

Sidang tersebut ditunda pada tanggal 12 Februari 2009 untuk mendengarkan pembacaan putusan akhir terhadap kasus tersebut dan pada saat tanggal 12 Februari 2009 tepat pada pukul 10:27 sidang pembacaan putusan dimulai. Hakim yang memimpin persidangan memutuskan bahwa terdakwa jelas melakukan tindakan penganiayaan yang bertentangan dengan pasal 351.1 KUHP Indonesia yang dengan ancaman hukuman 2 tahun penjara, namun hakim menimbang terdakwa masih merupakan seorang pelajar yang harus melanjutkan studinya dan terdakwa juga bersikap kolaboratif selama dalam persidangan maka hakim menjatuhkan hukuman selama 6 bulan penjara dan di rubah menjadi pidana percobaan diluar selama 1 tahun berdasarkan pasal 14. a KUHP Indonesia, dan dikenakan biaya perkara $10 pada terdakwa.

No.perk. 100/Pen/2009/PDS

Pengadilan Distrik Suai pada hari Rabu (11/02) menyidangkan kasus penganiayaan ringan yang dilakukan oleh terdakwa TA dan JT terhadap korban MCG pada tanggal 4 September 2007 di Tali Oan. Berdasarkan keterangan terdakwa TA dan JT mengakui segala perbuatan mereka terhadap korban, dan mengakui semua tuduhan yang dibacakan oleh pengadilan terhadap mereka. Alasan mereka menganiaya korban karena korban tanpa masalah apa pun mengejek dan memaki terdakwa TA pada hari sebelum kejadian yaitu pada tanggal 3 September 2007, terdakwa merasa tidak puas atas cekcok mulut tersebut pada hari berikutnya terdakwa mengundang terdakwa JT untuk menunggu korban yang pada saat itu baru pulang dari sekolah.

Pengadilan bersama hakim yang memimpin persidangan merasa bahwa tidak perlu lagi mendengarkan kesaksian dari para saksi karena kedua terdakwa mengakui secara keseluruhan dakwaan yang di dakwa oleh pihak kejaksaan. Setelah keputusan untuk tidak mendengarkan kesaksian dari para saksi disetujui oleh Jaksa dan Pengacara Umun maka pengadilan langsung melangkah pada proses berikutnya yakni pada tuntutan akhir secara lisan dari pihak kejaksaan dan Pengacara Umum terhadap kasus tersebut. Dalam tuntutannya Jaksa Penuntut Umum secara lisan mengatakan tetap pada tuntutan awal mereka yang telah dibacakan oleh pengadilan bahwa tindakan para terdakwa tersebut telah melanggar Pasal 351.1 KUHAP dan meminta kepada pengadilan untuk menjatuhkan hukuman sesuai dengan pasal tersebut tanpa harus mengesampingkan hal-hal yang meringangkan para terdakwa dalam persidangan. Sedangkan Pengacara Umum dalam pembelaan akhir secara lisan mengatakan kepada pengadilan untuk memberikan hukuman yang seadil-adilnya karena menurut Pengacara Umum perbuatan mereka tidak mengakibatkan suatu kesengsaraan secara fisik dalam jangka waktu yang panjang.

Persidangan selanjutnya untuk kasus ini pihak pengadilan memutuskan untuk melanjutkannya pada tanggal 18 Februari 2009.

Untuk mendapatkan info selanjutnya kontak: Roberto da Costa Pacheco Koordinator Peneliti Hukum, JSMP Alamat e-mail: bebeto@jsmp.minihub.org Landline: 3323883
East Timor Law Journal Blog

Statement by SRSG (UNMIT) to the UN Security Council 19 February 2009

United Nations

Security Council

Sixty-fourth year 6085th meeting

Thursday, 19 February 2009, 10 a.m. New York


Mr. Khare: Let me begin, Sir, by thanking you and the Member States for the very kind words directed towards myself and my Mission. I was particularly touched by the reference made by President José Ramos-Horta to the survey conducted by the International Republican Institute, which showed a 75 per cent popularity rating for my Mission. Since, in his usual humble fashion, the President did not mention his own popularity rating, kindly allow me to mention that he enjoys the highest popularity rating of that survey — 82 per cent. The rating is highly deserved and, in my mind, somewhat reflects his devoted, constant and tireless efforts to bring peace, prosperity and stability to his country.

I should also like, Sir, to thank you and the Council for its constant support for the work of my Mission and the Secretary-General and the Deputy Secretary-General for their constant guidance, advice and encouragement, which has made our achievements possible. I would also like to thank all Member States for their support for the Mission’s extension for one year at the current composition and strength. Many speakers reflected on the need to define a meaningful role for the Armed Forces of Timor-Leste in a peace-time setting and to separate very clearly the responsibilities for policing from those of the military and, indeed, internal security from external defence. They also recognized a very strong need to enhance the mechanisms of internal accountability and civilian oversight over both security forces.

I am very pleased to inform Council members that those issues are at the forefront of the thinking of the Timorese leadership, which is committed to those developments. While some will be achieved through a process of security sector review and reform, essentially led by the Timorese authorities and supported by the United Nations, substantial bilateral assistance will be required for the development of proper military doctrines. I would particularly like to mention the bilateral cooperation being provided by Australia, Brazil, Portugal, New Zealand and the United States of America through its Pacific Command, which has been extremely useful in helping the Timorese authorities to achieve the goals of defining, as I said, a meaningful role for their army in a peace-time setting.

Several speakers referred to the forthcoming resumption of policing responsibilities by the Polícia Nacional de Timor-Leste. This resumption would be gradual; it would follow a phased approach. In my view, depending on progress, it would take several months or maybe up to a year. Thus, some time during the last quarter of this year — 2009 — depending on progress, my Mission will make a mid-term assessment of the success of the resumption process to that point. And, with the help of a technical assessment mission from Headquarters, we will recommend benchmarks for possible adjustments in the numbers of UNMIT police — which also should be carried out in a gradual, step-by-step fashion, without endangering continued stability. That recommendation could be included, perhaps, with the approval of the Secretary-General, in the next report of the Secretary-General, to be issued in February 2010.

At this stage I should like to recall that the record of my Mission in releasing assets that are no longer required speaks for itself. For example, immediately after the constitution of the new Government in August 2007, following the 2007 elections, we ensured that the additional 140 police officers that the Security Council provided for security during the electoral period through its resolution 1745 (2007) were immediately released, along with nearly 400 electoral officers. So, we are very happy to release assets at the first possible moment when they are no longer required; but currently I believe that, at this stage when we are just commencing the resumption process, the present strength of international police must be maintained for a period of a full year, until February 2010.

On the reform of the justice sector, and on the need for an independent comprehensive needs assessment — and, of course, on strengthening the justice sector to provide greater accountability and to combat any perception of impunity — I would like to report that at the last meeting of the Committee on High-level Coordination, chaired by His Excellency Mr. José Ramos-Horta on 29 January, a decision was taken to quickly conduct an independent comprehensive needs assessment. I trust that within the next 12 to 18 weeks this independent comprehensive needs assessment should become a reality and should thereafter permit the international community to plan its assistance to the justice sector.

Some speakers raised the issue of the need to fight domestic violence and the need to fight and curb any limited trafficking in persons that might be taking place. I want to put on record my deepest appreciation to His Excellency the President, who in fact in March last year, on International Women’s Day — from his hospital bed, at a time when he was still recovering issued a public message to the people of Timor-Leste to combat these evils. And more recently, on 3 February, he released the latest report of the United Nations Development Fund for Women on the status of women and committed himself and his country to fighting the social evils of domestic violence and gender-based violence.

I would be remiss if I did not mention the efforts of Prime Minister Xanana Gusmão in promoting gender-responsive budgeting in the latest budget and in appointing gender focal points in all ministries to ensure that the work of those ministries is as attuned as possible to these concerns of women and development. Since I have already taken more than five minutes of the Council’s time, allow me to conclude by thanking the international security forces and their contributors, Australia and New Zealand; all the members of the United Nations country team and, indeed, of the wider United Nations family, including the World Bank and the International Monetary Fund; and, in particular, the two Deputy Special Representatives, Mr. Finn Reske-Nielsen and Mr. Takahisa Kawakami, who are really my right and left hands and who are pillars of great strength in my efforts to assist the Timorese leaders and their people.

The President: I thank Mr. Khare for his statement.

On this occasion I must say that the fact that so many speakers, from five regions of the world, took the floor in this open debate on Timor-Leste is a manifestation of strong interest and support by all Member States regarding the future, the democracy and the stability of Timor-Leste. It seems that unanimous strong support was expressed for the continued presence of the United Nations Integrated Mission in Timor-Leste (UNMIT) and for an extension of its mandate, as well as for the continued prosperity of Timor-Leste.

I would like to take this opportunity, on behalf of my colleagues in the Council, to convey the deepest possible appreciation to His Excellency President José Ramos-Horta and his delegation for taking the trouble to come to New York to attend this open debate on the occasion of an extension of the mandate. I wish the President good health and future success in his country. I also express great appreciation to Deputy Secretary- General Migiro for her patience and for staying with the Council to show her solidarity with us.

There are no further speakers inscribed on my list. The Security Council has thus concluded the present stage of its consideration of the item on its agenda.

The meeting rose at 1.35 p.m.


23 February 2009

Angelita Pires - Caught in a political web of intrigue in East Timor

Northern Territory News (Australia) February 21, 2009 Saturday Caught in a political web of intrigue By SALLY McDONALD - 'I am a scapegoat', says lover of slain rebel leader Reinado.

THE Australian Embassy in Dili is "raising concerns'' with East Timorese authorities about the legal limbo of former Darwin resident Angelita Pires, according to documents obtained by the Northern Territory News.

Investigations into the shooting of President Jose Ramos Horta on February 11, 2008 have dragged on for over a year, with Ms Pires, 42, forced to stay in the country as a named suspect in the case.

According to Australian government correspondence, East Timor's Prosecutor-General originally said investigations would be submitted to the courts by the end of January this year -- but the latest news from his office is that it will be concluded early in March.

Meanwhile, Ms Pires protests her innocence and wants the matter finalised immediately.

She has been given full briefings after a January 9 meeting between the Australian ambassador in Dili and East Timor authorities and a meeting held one month later between Australian Foreign Minister Stephen Smith and East Timorese Foreign Minister Zacarias da Costa.

"They [the Prosecutor-General's office] said I'm not the big person they're after but I may be accused of low-level conspiracy,'' she said.

'I don't know what that means -- I've gone from being a terrible, terrible person to not being that deeply involved. Everyone knows there isn't any evidence and so they're just using me as a scapegoat.''

Irrespective of the outcome of investigations, Ms Pires has had a terrible year.

Her lover was killed, she lost her unborn child, she was arrested and released twice, she has had her passport confiscated and she's been relying on donations from her family back in Australia and neighbours in Dili as she cannot find paid work.

"When it is the President who is speaking ill of me, who is going to give me a job?''

For the past year, Ms Pires has pined for her home in Australia and desperately wants to visit her family in Darwin.

'I grew up in Australia where the rule of law and respect for human rights is normal, so once you lose all of that you realise what a lucky country we come from.''

Her mother, Maria Pires, 70, tirelessly protests on her behalf and even tried to speak directly to East Timor President Jose Ramos-Horta when he was in Darwin.

She is worried about her daughter's health and welfare as investigations drag on.

``I'm very sad and very upset as until now nothing has happened,'' she said. ``Why doesn't the East Timorese government let her go, let her come home.''

Ms Pires' brother, Antonio, is gunned-down East Timorese rebel leader scathing about what he sees as a lack of support by the Department of Foreign Affairs and Trade (DFAT).

Up until this point, DFAT has ignored our requests and not even kept the family updated,'' he said.

"But I guess one year on, they finally realised they have to do something.''

If delays continue beyond the Prosecutor-General's March 4 deadline, the Australian Embassy in Dili has said it would ask if Ms Pires could come back to Australia to visit her family under the proviso that she'd return to East Timor for court hearings at a later date.

Having waited on deadlines before, Ms Pires is not too optimistic about resolving her legal limbo situation. "I don't know,'' she said. "They may extend the date again as the legal system here is very dysfunctional.''

22 February 2009

UN: New Permanent Representative of East Timor in Geneva


The following information was released by the United Nations Office at Geneva (UNOG):

Joaquim A.M.L. da Fonseca, the new Permanent Representative of Timor-Leste to the United Nations Office at Geneva, today presented his credentials to Sergei Ordzhonikidze, the Director-General of the United Nations Office at Geneva.

Prior to his appointment to Geneva, Mr. da Fonseca had been serving as the Civil Society Adviser at the Office of the Prime Minister since November 2007. From September 2006 to November 2007, he was the Human Rights Adviser in the same office. From June 2004 to July 2006, he was the Human Rights Liaison Officer and Report Drafter at the Ministry of Foreign Affairs and International Cooperation.

From January 2004 to February 2004, Mr. da Fonseca served as the Advisor on Public Consultation at the Commission for the Former Combatants and the Commission for the Veterans of Falintil. From February 2001 to January 2003, he was Head of the Policy Advocacy Division at the Yayasan Hak Foundation for Law, Human Rights and Justice, prior to which, from April 1999 to February 2001, he was the Head of the Human Rights Advocacy Division at the Foundation.

Mr. da Fonseca holds an MSc in management of non-governmental organizations from the London School of Economics and Political Science (2002-2003), and has participated in numerous professional training courses and international human rights conferences.

For use of the information media; not an official record

Lessons from the Khmer Rouge tribunal

Saturday, February 21, 2009 9:41 PM Lessons from the Khmer Rouge tribunal Fitria Chairani , PHNOM PENH | Sat, 02/21/2009 1:22 PM | Opinion - On Feb.17, 2009, the ECCC (Extraordinary Chamber in the Courts of Cambodia) held the opening session of its first trial, the trial of Kiang Guek Eav, alias Duch. He is accused of war crimes and crimes against humanity while he was the head of the notorious S-21 Prison in Phnom Penh.

Most victims taken to the prison during that period were tortured and forced to confess by way of electric shocks, beatings and whippings, placing bags over their heads and pouring water into their noses, before being bludgeoned to death or "smashed" in a field on the city's outskirts. Women, children and even babies were among those murdered.

Duch and four other senior Khmer Rouge cadres are alleged to be responsible for the deaths of 1.7 million people from 1975-1979. The others are the Khmer Rouge second-in-command, Nuon Chea; the former foreign minister Ieng Sary; the former social affairs minister Ieng Thirith; and the former head of state Khieu Samphan.

The initial hearing of the trial took two days, which mainly discussed the role of the civil parties, the admissibility of evidence and the witness lists, as well as preliminary objections brought by the defense. It was a big day for the people of Cambodia, as they saw Duch for the first time in decades (some of the victims had not even seen Duch since they were detained in S-21 prison).

Thirty years have elapsed since the occurrence of such brutality. The trial was finally set up, and showed the significant progress made toward the truth-seeking process in Cambodia upon those most responsible for committing such extreme crimes during the Khmer Rouge era.

Finally, the ECCC was established in 2003 under an agreement between the United Nations and Cambodia. Up until this present moment, the ECCC agenda is to put the above five people on trial, with the debated notion of putting more accused people on trial on the agenda. This is due to the history of such brutality, which involved more people that could be deemed the most responsible for the crimes committed.

To open such a traumatic history is not easy. This is proved by the controversy that occurred during the legal process. Conflict of interest is often raised, especially when there are many people that were involved as members of the Khmer Rouge.

In comparison, specifically with regard to the truth-seeking process, Indonesia has also been through some difficult situations in terms of conflict that could possibly be alleged as crimes against humanity, specifically on gross human rights violations. Among others are the alleged gross human rights violations in East Timor.

Although East Timor is no longer part of Indonesia, it is still part of Indonesia's history and any incident that occurred there can be deemed Indonesia's responsibility if it took place between 1974 and 1999.

Indeed, the Special Panel for Serious Crimes in East Timor, established right after the secession, successfully convicted 84 individuals and acquitted three; however that panel only had limited jurisdiction, which was to prosecute crimes, crimes against humanity, murder, sexual offences and torture committed between Jan. 1, 1999, and Oct. 25, 1999. Such a process also excluded a number of Indonesian nationals, who were allegedly involved in the atrocities.

However, in 2007, the final report by the Indonesian and East Timor Truth and Friendship Commission as mandated by the UNTAET Regulation No. 10/2001 has taken one significant step toward facing the truth. It has revealed several human rights violations committed between 1974 until 1999, including ones allegedly committed by Indonesian Military officers.

It came as a surprise when the report found that 84,200 civilians had died between the late 1970s until the early 1980s due to acts by the Indonesian Military, by the bombing of civilian territory, the destruction of food supplies, the forced movement of people away from Fretilin territory, as well as denying food supplies from international aid agencies and organizations.

Moreover, torture and execution were also reported to be repetitively conducted in an inhumane manner by incarcerating detainees without adequate food and water in pitch-dark cells, after being stripped naked and tortured continuously. There were also numbers of detainees killed after being severely beaten. Attacks on civilians were reported, with cases of short-distance shootings, grenade attacks, executions, rapes and sexual harassment, mutilations and many other extreme punishments.

In addition to that, systematic murder and forced disappearances occurred during the early Indonesian occupation, specifically during the period 1978-1979 and 1983-1984 to the people allegedly actively involved with the resistance movement. Forced movement and mass destruction occurred just before the referendum in1999, in order to secure the pro-integration position in the referendum.

These gross human rights violations must not be ignored or tolerated. As a civilized nation, one that has committed itself to the rule of law and human rights, Indonesia has undisputed obligations to act upon such violations. It has to face up to the allegation its military, police and civilian government might be "institutionally responsible" or even that some personnel are "individually responsible" for "gross human rights violations" before and after East Timor's independence referendum in 1999.

Hopefully, there will be more action taken following the commission's report, as a sign that, indeed, this nation is ready to face the truth and bring anyone responsible to justice. This does not apply only to East Timor of course, but other places of conflict such as Aceh and Papua. In this case, the Cambodian precedent of a truth-seeking process could be very useful.

The writer is currently working as a legal intern at the Office of Co-Prosecutors at the ECCC.

East Timor Legal News 18 February 2009

Two men detained over sexual assault: Police Radio Televisaun Timor Leste 18 February 2009 - Manufahi District Police Commander, Inspector Miguel Faria, said the police had detained two men suspected of being engaged in an attempted sexual assault of 2 minor girls.

Alkatiri resigns from the post of negotiator Radio Televisaun Timor Leste 18 February 2009 - Former Prime Minister Mari Alkatiri has resigned from the negotiating team for the Timor Sea gas and oil deals because he has not been supported legally by the Government.

Guterres and his colleagues breach Fretilin’s rules: Fretilin MP Timor Newsline 18 February 2009 - Fretilin MP Jose Manuel Fernandes said his party made a decision to sack current Deputy Prime Minister, Jose Luis Guterres, Vitor da Costa and his colleagues from the Fretilin Board member because they breached the party's rules by setting up another Fretilin.

Election for villages chief will be held in September 2009 Radio Televisaun Timor Leste 18 February 2009 - Director for Technical Secretariat for Electoral Administration (STAE), Thomas Cabral, said election for 442 village chiefs in Timor-Leste would be held before September 23 and said the date had been approved by the National Electoral Commission (CNE).

UN needs to be here until 2012: CNRT MP Timor Post 18 February 2009 - The National Congress for Timorese Reconstruction (CNRT) MP Aderito Hugo da Costa has urged President Jose Ramos Horta to continue calling for the UN mission's extension in Timor-Leste, as the security situation of the country was still volatile.

Better to choose post of deputy pm than anti-corruption commission: Carrascalao Suara Timor Lorosae 18 February 2009 - MP Mario Vieagas Carrascalao said he would prefer to be Deputy Prime Minister II than to lead proposed anti-corruption commission.

Japan concerns about corruptions in Timor-Leste Suara Timor Lorosae 18 February 2009 - Japanese Government and some particular entities were concerned about corruptions found in the country's Government institutions, especially in the implementation of state projects in Timor-Leste.

Government to construct dormitory for PNTL: State secretary for security Radio Televisaun Timor Leste 18 February 2009 - State Secretary for Security, Francisco da Costa Guterres, said the Government had prepared a plan to construct dormitory for police officers in the Capital Dili so that police could be more disciplined in doing their tasks.

State secretary for defence visits Miliyary Police office construction Radio Televisaun Timor Leste 18 February 2009 - State Secretary for Defence, Julio Thomas Pinto, made a short visit to the defence force's military police office construction looking at progresse of the construction.

East Timor Legal News 19 February 2009

Law for witness protection passed in the Parliament Radio Televisaun Timor Leste 19 February 2009 - The proposed law for witness was passed overwhelmingly in the vote on Wednesday (18/2) after a profound debate in the Parliament.

Police command suspends Rapid Response Unit commander Radio Televisaun Timor Leste 19 February 2009 - The Timorese Acting Police Commander, Inspector Afonso de Jesus, said the Police Command had made a decision to provisionally suspend the Rapid Police Intervention Unit (UIR) commander from his post, upon suspicion that he was involved in some cases claimed by the residents.

Prosecutor should be a legal practitioner not politician: Legal observer Radio Televisaun Timor Leste 19 February 2009 - A Timorese Legal Observer, Jose Gama, said the country's state bodies should appoint a legal practitioner to be placed in the post of prosecutor general who should not be a politician or anyone who was affiliated to any political parties.

State should appoint experienced man to be prosecutor general: Hornai Radio Televisaun Timor Leste 19 February 2009 - The Timorese Youth Council President Levogildo Hornai said the country’s state body should appoint an experienced man to place the post of prosecutor general who should be independent not affiliated to any political parties.

MP considers court does not work optimally Suara Timor Lorosae 19 February 2009 - M Vital dos Santos from the Democratic Party (PD) considers that state institutions, especially the courts, had not performed their functions optimally because they only deal with their own interest and that had caused so many cases to be pending.

Court administrative officers urging their status Suara Timor Lorosae 19 February 2009 -The Timorese court administrative officers' representatives have met with Parliamentary Committee A to convey concerns about their status working in the court, as their status was still unclear, but in fact they had been working for the court for many years.