In the common law world, such interventions by the Head of State in the judicial process constitute a grave violation of the doctrine of the separation of state powers and the independence of the judicial process from political interference. Such interventions erode the rule of law and strike at the very heart of democracy.
As common law jurists know, the victory of the English common law began with the abolition of torture in
This great principle, that law is above the executive, was violated in
That English medieval idea of the supremacy of law as something separate from and independent of the will of the executive, disappeared in continental countries where the civil law system developed. But in
What hope then, does East Timor, which implements what is essentially a civil law system based on the continental European colonial law codes, have for the triumph of the rule of just law over the caprices of the political organs of the post-independence state while there are unquestioned phenomena such as the blatant manipulation of the judicial process that is demonstrated in the media reports of President Horta's entirely inappropriate interventions in the 11 February cases?
In so far as the United Nations mission in East Timor (UNMISET) remains silent on these matters, it becomes complicit in the destruction of the constitutional principles of the rule of law and the separation of powers and will no doubt stand impotently by wringing its hands when the next collapse of the legal order in East Timor brings calamitous sufferings to the people.
Donors should be wary of contributing vast funds through UNDP to the so-called development of the fundamentally dysfunctional judicial system in
One part of the solution to this problem is the strengthening and empowerment of civil society. Civil society programs that are focused on the judicial system should be prioritised by the funding agencies. Particularly, credible and established East Timorese organisations such as the Judicial System Monitoring Program (JSMP), the Rights Association (HAK) and the East Timor Lawyers Association should be strongly supported by the donors.
East Timor Law Journal - Towards the rule of law in Timor-Leste!