TRANSLATION OF PART OF THE DECISION OF COURT OF APPEAL REGARDING THE APPEAL OF JUDGE IVO ROSA AGAINST THE NON RENEWAL OF HIS CONTRACT BY THE SUPERIOR COUNCIL FOR THE JUDICIARY, DATED 31 DECEMBER 2008.
(The translation below is of the "reasoning" part of the Court's decision. The lengthy preceding Parts I and II, which set out the legal and factual points of the appeal and arguments by both appellant and respondent has not been translated yet. The decision and the reasons for the decision were considered more imperative to inform non Portuguese speakers of the crux of the decision by the Court and also to facilitate translation into Tetum very soon.)
III – GROUNDS AT LAW
1. Irregularity in composition of Superior Council for the Judiciary
Applying the law to the proven facts, firstly we find an irregularity in the composition of the SCJ, which took the decision not to renew the appellant's contract.
In effect Cirilio Cristovao is merely a substitute member for the council member Dionisio Babo and, as such, in terms of article 9, no. 3 of the Judicial Statutes, he can only participate in substitution of Babo when he is absent or is impeded from participation and never simultaneously with him.
In this case Cirilio Cristovao participated as a member of the SCJ, simultaneously with the effective member Dionisio Babo in the decision who was neither absent nor impeded from participating.
The member Dionisio Babo could not have considered himself to be either absent or impeded just by the fact that he is Vice President of the Council or being a substitute for the President; he was neither absent nor prevented from attending because he was present in the meeting, nor was impeded because he participated in the meeting.
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.
2. Protected legal right
Following we will see whether the appellant has a legally protected right or interest that deserves protection through this appeal.
We verify with all that has already been proven that the appellant has exercised his duties firstly as a judge of the Dili District Court and afterwards as a judge of the Court of Appeal and as a trainer for national judges, with his work during this time having been evaluated positively by the President of the Superior Council for the Judiciary and by UNDP and his contract having been successively renewed; despite this, by its decision on the 13th of November 2008, the SCJ decided not to renew the appellant's contract as a judge of the Court of Appeal and gave start to the process of recruitment for a new judge to substitute the appellant.
As the contract is periodically renewable, for a specific term, we have to conclude that in case of non renewal, the contract ends on the lapsing of the period it is in force; but on the other hand, as it has not been proven that the automatic renewal of the contract was specifically stipulated, we cannot say that the appellant has a right unless the contract is renewed.
In all, article 111, no. 2 of the Judiciary's Statutes states that provisions of this statute are applied to all international judges exercising their functions in the Timor-Leste judicial structure, with appropriate adaptations.
This means that, putting aside those provisions that by their very nature will only apply to national judges, the provisions of the statutes also apply to international judges exercising functions in the Timorese judicial structure.
The provisions aimed at and guaranteeing the independence and impartiality of the judges apply necessarily to the international judges.
More concretely the provisions of article 6 of the statutes that says that "judges cannot be transferred, suspended, promoted, removed, dismissed or in any other way be subject to a change in position, unless it is in the cases foreseen in this statute" also applies to international judges with the appropriate adaptations.
This is to say that international judges can only be suspended, dismissed or in any other way removed from their position in the circumstances foreseen by the law; namely that they cannot be terminated from exercising their functions by force of the expiration of the term of the contract, if it is the case that need and convenience continue for him or her to remain within the Timorese judicial structure, otherwise it would be violating the principle of immovability.
The fact of the contract establishing a time duration for the judge to remain an international judge in the Timorese judicial structure when there is a continuing need and convenience for the judge and there is no other reason of impossibility for his continuance (such as the judge himself or herself not being interested in continuing or not being able to obtain the authorization from his service of origin to continue to remain or there not being any funds to pay for him).
The interpretation of article 111, no. 2 in the sense that this provision permits the SCJ, without just cause not to renew the contract in those cases where the continuance of the judge in question is both necessary and convenient violates the principle of immovability of judges foreseen in article 6 of the justice's statutes and article 121, no. 2 of the Constitution.
Such an interpretation will allow the exercise of judicial functions by international judges to become vulnerable to pressures and persecutions of various kinds, namely, of a political nature, and that the international judges will remain under permanent danger of not seeing their contracts renewed in case they make decisions contrary to interests with influence with the Superior Council for the Judiciary (in case this body is influenced by such interests).
This would be totally contrary to the intended objective of the cited article 111 which allows that Timor-Leste have recourse to non national judges to maintain the proper and regular functioning of its judicial system, the functioning of which is necessarily dependent on the independence and impartiality of judges who work in the Timorese courts.
It follows that the it is legitimate for an international judge whose contract term has come to an end to have a legal expectation that his or her contract would be renewed, if the need and convenience for him or her to remain in the Timorese judicial system continues.
As such, we have to acknowledge that the appellant has a legal expectation in seeing his contract renewed, given that his presence continues to be necessary and convenient, an expectation which, upon being violated deserves a legal remedy.
3. Absence of grounds for the decision
It is also clear to us that the decision not to renew the appellants contract has no grounds what so ever. In all, in terms of decree law 32/2008 the determination should have proper grounds, and where necessary (article 43, No. 1 line e), a determination that denies, extinguishes, restricts or in any way affects rights and interests protect by the law, or which imposes a penalty, or which determines in a manner differently from the practice normally followed in the resolution of similar cases, or which interprets and applies those same principles and legal precepts (article 43 No. 1 line a and e), the grounds should be made express, through a succinct exposition of the factual and legal grounds for the decision, although it may consist merely of a declaration of agreement with the grounds presented as antecedents, information or other proposals that constitute in this case an integral part of the proceedings (article 44, no.1).
It is irrelevant that the SCJ now in its response in opposition to the appeal indicates a list of reasons as grounds for the decision, which it did not state as the grounds for the proceedings; the grounds must be a part of the proceedings itself, as article 44, no.1 states.
The SCJ limits itself by saying that it was exercising a discretionary power and, because of this, did not have to have grounds for the proceedings. All in all, this understanding is totally contrary to what the law says.
The provisions earlier cited do not exclude the obligation to provide grounds for action taken in the exercise of a discretionary power; to the contrary, as is stipulated in no. 2 of article 43, only orders from superior bodies to their subordinates relating to perfunctory matters and of a legal form do not have to be based on grounds, and even then, only in cases where the law does not stipulate to the contrary.
As Professor Rui Machete was cited by Professor Freitas do Amaral says, the obligation to provide grounds for administrative decisions are aimed at: in the first instance for the defense of the citizen – who will only be able to properly ascertain his or her rights and obligations if he or she can understand the motives that led the administration to decide in a determined way; secondly, for the self-control of the administration – given that the obligation to provide grounds amounts to an invitation for pondering on all the facts that are of interest in the decision, and, on the other hand that the explanation of the motives for the determination in a proceedings facilitate control by the institutions with the power to supervise these; thirdly, the peaceful relations between the administration and citizens – given that the latter tend to better accept the eventual unfavorable decisions if the corresponding reasons have been completely communicated, in a clear and coherent form; fourthly, the clarification and proof of the facts on which the decision is based – which adhere to the compliance with the demands for transparency of the administration ( see Diogo Freitas do Amaral, Administrative Law Studies, Vol II, Almedina, 2002, pages 350 and 351).
The SCJ alleges also that, relying on the exercise of discretionary powers, it was free to decide between renewing and not renewing the appellant's contract, without taking anything else into account. But this conceptualization of discretionary powers is erroneous. The exercise of cannot be purely arbitrary, depending on the arbitrariness of the deciding entity.
As Professor Freitas do Amaral says "in the discretion the law does not give the empowered administrative body the freedom to choose any solution, but in fact compels it to seek the best solution to satisfy the public interest in accordance with principles of judicial action", "the law, in conferring to a determined body a discretionary power, does at the same time confer the right to choose any choice that justifies an end, but in fact deliberately prefers and expects that it is sought and effected that which, having pondered all the facts and circumstances, can concretely be ascertained, and with the rights being observed of the imperatives that flow from the principles of proportionality, equality, good faith and impartiality which the administrative body has adjudged" (see Diogo Freitas de Amaral, in Studies in Administrative Law, Vol II, Almedina, 2002, pages 82 and 81, respectively).
In this concrete case, on one hand, the SCJ decided not to renew the appellant's contract without pondering the circumstances of the case concretely.
On the other hand, having taken into consideration the proven facts, namely, that since the appointment to his position as a judge of the District Court until the present date the appellant has been positively evaluated by the President of the Superior Council for the Judiciary, which in his evaluation on behalf of UNDP has always acknowledged the quality of service given by the appellant and his contribution to the strengthening of the judicial system and consolidation of the Rule of Law, which the appellant whilst a judge of the Court of Appeal, in accumulation of his function as judge trainer, between the 9th of June 2008 and the present moment he delivered 63 decisions, all within the time stipulated by the law, without any outstanding judgments imputable against him, the best solution to satisfy the public interest would have been to renew the appellant's contract.
Taking into account the circumstances referred to and the fact that the position continues to be necessary, seeing that the SCJ at the same time decided to take steps to contract another judge to substitute the appellant, once more we see that the decision was not motivated by reasons of public interest. In addition to this, considering that the SCJ decided to renew the contract of another two judges of the Court of Appeal without there being any reason for justifying this difference in treatment, the decision of the SCJ breached the principle of equality of treatment and the principle of justice and impartiality foreshadowed in articles 3 and 5 respectively of Decree Law 32/2008.
The decision taken is manifestly arbitrary and contrary to the law that confers on the SCJ the powers to manage and discipline judges with the objective of guaranteeing the sound functioning of the judicial power, namely to ensure that the courts have judges who are personally, professionally and technically prepared to take decisions with independence and impartiality.
The circumstances and the manner in which the decision was taken allowed that it appeared in the eyes of the mass media, and was communicated by them, as being motivated by political reasons, linked to the decision taken by the appellant, which affects the image of the SCJ which is a body that has the obligation to guarantee that judges are not penalized for their decisions so that they can exercise their functions with independence and impartiality. For these reasons, it is to be expected that in the contested appeal filed by the appellant that the decision of the SCJ is declared null and void, in accordance with articles 52 and 53 of the Decree Law 21/2008.
4. The Periculum in mora
In the face of what has been proven, the execution of the decision of the SCJ not to renew the appellant's contract, leading to the recruitment of another judge to substitute him, will irrevocably extinguish the realization of his legal expectation to have his contract renewed.
In turn the execution of the decision of the SCJ will make any favorable decision the appellant may obtain in this appeal ineffectual. Its execution will put into effect the recruitment process for another Judge for the court of Appeal and render ineffectual the renewal of the appellant's contract, as is his expectation.
In addition this will have implications by reducing the number of judges for the Court of Appeal to merely two and will mean the appellant will cease to be a trainer for probationary judges in their final probationary phase, a phase in which the trainer should write a report regarding their performance as trainees and pass opinion on their aptitude to be appointed as judges in law, a duty which should only be performed in a conscientious and just manner as those who have in fact undergone the probationary training are expected to perform.
Because of this all the prerequisites set out by article 305 of the Civil Procedure Code have been fulfilled to grant the pre-emptive relief sought. There are no grounds whatsoever to condemn the appellant as a litigant in bad faith, as is alleged by the SCJ.
IV - DECISION
For the reasons set out herein, it is decided by the Judges of the Court of Appeal to suspend the execution of the deliberations of the SCJ of the 13th of November 2008 which decided that the non renewal of the contract of the appellant Judge Ivo Nelson Caires Batista Rosa and launching the recruitment selection process of another judge to substitute him as a judge of the Court of Appeal.
Without costs, given that the SCJ, here defeated and therefore, responsible for its own costs, having already been exempt from the payment of such costs according to article 2, no. 1, line a), of the Judicial Costs Code.
The Appellant, the SCJ and UNDP are hereby notified.
Dili, 31 December 2008
The Judges of the Court of Appeal
Judge Maria Natércia Gusmão Pereira, President and Reporting Judge
Judge Antonino Gonçalves
Judge Jacinta Correia da Costa