Dili, Timor-Leste 13 October 2009 This report was commissioned by the UN and conducted by an independent team led by Phillip Rapoza (United States) and including Helena Bolieiro (Portugal), Roza Salibekova (Kazakhstan) and John Stompor (United States). La’o Hamutuk is circulating the Executive Summary only; the complete report should be available shortly.
1. An Overview
Progress has been made, especially over the last several years, within the justice system of Timor-Leste. Both the Timorese and those who have assisted them are to be commended for the significant steps that have been taken to date to see that the rule of law is made a reality in Asia’s newest nation. Nonetheless, many challenges remain and it is the purpose of this report to assess the needs that continue to exist.
2. Completing the Legal Framework
As set forth in its Constitution, Timor-Leste is a democratic state based on the rule of law, the will of the people and respect for the dignity of the human person. Other than the Constitution, the sources of law in Timor-Leste are legislation enacted by Parliament and decree laws and other legal acts issued by the Government. In addition to domestic law, the Constitution also recognizes international law and provides that the country’s legal system shall adopt the general or customary principles of international law as well as those rules provided for in conventions, treaties and agreements that apply in Timor-Leste.
Several noteworthy accomplishments have been achieved in the process of completing the country’s legal framework. These include the adoption of the Penal Code, the Criminal Procedure Code, the Law on the Protection of Witnesses, the Civil Procedure Code and several others. Also underway are the Civil Code and a law addressing domestic violence.
There remain a number of areas in which additional progress must be achieved, including the development of a Children’s Code and a law concerning young offenders. Similarly, both a Commercial Code and a Labour Code should be developed to completion.
The process of legislative drafting implicates a number of considerations, including the need for translation of all existing and proposed laws into both Portuguese and Tetum. Another issue is the need to avoid wholesale adoption of foreign statutory models as not always being consistent with Timorese reality. Moreover, laws must be harmonized with the resources available to implement them.
Finally, there is a need to enhance the training of national staff in legislative drafting skills, anticipating that point in time when the drafting of legislation will largely be their own responsibility. In this regard, an initiative should be launched to develop a standard “legal Tetum” either by appropriate translation or adaptation of terminology.
3. Strengthening the Judiciary: Courts and Judges
The judicial structure of Timor-Leste is largely the same as that instituted by UNTAET and consists of a Court of Appeal and four District Courts. There are currently thirteen national judges serving in the judiciary, with a number of international judges also providing line functions.
There is a need for more judges rendering justice in more places in Timor-Leste. Thirteen judges, regardless of their merit and their commitment, simply cannot meet the justice needs of over a million people spread out across the country, often in remote areas. As progress continues at the Legal Training Centre additional judges will be brought on line, although the continued use of international judges will be necessary for a number of years. Thereafter, all line functions should be performed exclusively by Timorese judges, although continued access to international judges serving as advisors and trainers will be of assistance.
Consideration should be given to building on current efforts by the judiciary to use “mobile justice” as a means for bringing formal justice to areas of the country underserved by judicial institutions. At the same time, consideration should be given in the longer term to the establishment of additional district courts, mindful of the need to develop sufficient human resources to provide adequate judicial, administrative and clerical staffing. Moreover, there must be a parallel availability of prosecutors and public defenders in proximity to any new courts. Any future development in this regard must thus be approached in a balanced and coordinated manner.
The development of a uniform, reliable case tracking system should be a priority, not only for the purposes of transparency, but to develop efficiencies in case management. One can successfully manage only what one measures and case tracking is essential to that process. Case tracking systems attempted to date with international assistance have been well motivated but largely unsuccessful.
The Legal Training Centre is critical to the strengthening of the judiciary. In addition to training judges, prosecutors and public defenders, its role has expanded to include other justice system professionals as well. Consequently, the LTC plays an important and expending role in the development of the justice system. The training made available for judges and others should be of a continuing nature, and not simply to qualify for entry into a particular profession. Continuing education is essential to maintaining a high level of professionalism over time.
4. Supporting Law Enforcement: Prosecutors and Police
In Timor-Leste, public prosecutors and police are the two primary branches of the law enforcement authority of the State. Consequently, the Public Prosecution Service in the Office of the Prosecutor-General and the National Police of Timor-Leste (PNTL) play major roles within the justice system.
The Public Prosecution Service remains an undersized institution with a total of fourteen public prosecutors. Nonetheless, district offices have been established in proximity to each of the district courts, providing an appropriate base of operations with each judicial district. Challenges remain, however, in the number of cases under investigation, requiring greater coordination between prosecutors and the PNTL. Moreover, there is a significant need for a functioning case tracking system in order to manage the large inventory of cases still pending at the investigative stage.
A number of challenges face the national police, who continue to collaborate with their international counterparts in UNPOL. The needs of the police include gaps in logistics, skills and training, as well as organization and management. Essential equipment and other support is lacking in the domain of communications and transportation. Moreover, specialized skills need to be developed in areas such as forensics, sexual assault, domestic violence as well as others. Overall, there is a demand for trained investigators and such a capacity should be developed and implemented. Finally, training is also required concerning both the Penal Code and the Criminal Procedure Code. International police have struggled with language issues and the balance between performance of line functions and mentoring.
5. Providing Equality of Arms: Public Defenders and Private Lawyers
The Office of the Public Defender (OPD) plays a key role in providing legal assistance and representation in Timor-Leste. The focus of that mission is challenged, however, by the fact that public defenders accept clients regardless of their financial need. In sum, a legal service intended for those who are indigent and without means is also made available to those who are able to pay for their legal representation. Another concern is the persistent suggestion that public defenders accept direct payment from private clients for legal services. Public defenders are paid salaries to serve the public. To receive payments from individual clients runs contrary to that purpose.
Although it is widely considered that the OPD includes some of the better attorneys in Timor-Leste, the geographical reach of their services is limited and should be expanded. Steps should be taken to ensure that those without means have access to legal representation throughout the national territory.
Private lawyers provide the majority of legal services across the country and serve a diverse range of clients. One of their unique contributions is to offer the possibility for legal representation that is independent of the government. Because they are not state actors, they can also provide a check on the potential excesses of institutional actors.
Despite the importance of private lawyers, the development of the private legal profession has received comparatively little attention. Consequently, there is an urgent need to establish the basic elements of the private legal profession, including an independent, professional bar association. The transitional body for the regulation of private lawyers is not yet fully functional. Nonetheless, a 24-month training programme at the Legal Training Centre is under consideration, although the lack of strong Portuguese language skills among private lawyers will need to be overcome.
Despite many practical challenges, private lawyers currently provide most of the formal legal services in the country. Moreover, a significant number provide services through legal aid programmes. The private lawyers of Timor-Leste will be a significant national asset over the coming years. Part 2
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