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.

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