19 October 2009
The Justice System of Timor-Leste: An Independent Comprehensive Needs Assessment Part 2
6. Securing and Rehabilitating: Prison Services and Corrections
There are two prisons in Timor-Leste, one in Dili at Becora and the other in Gleno. Together, these facilities currently hold just over 200 prisoners, some being pre-trial detainees and the others serving prison sentences. Although physical conditions in the two prisons largely conform to international human rights standards, the corrections system nonetheless faces significant challenges.
These include a lack of separate facilities for women and young offenders and a failure to separate young offenders who are pre-trial detainees from those who are serving sentences. Moreover, there is a need to improve medical care and facilities within each institution. Similarly, there is no coherent social reinsertion plan for inmates once they have served their sentence. To the extent that prisoners receive some training in vocational skills, they lack appropriate certification or documentation, which should be provided.
There is a significant need to develop the capacity of prison staff, and training in a number of areas is required. At the same time, the staff is without basic resources relating to internal security, such as handcuffs and other basic means of control.
Finally, the two current prisons pose a geographical challenge to families of detainees and prisoners who may wish to visit. Similarly, the transportation of detainees from prison to court in either Oecusse or Suai can present serious difficulties. To the extent that challenges in the penal system can be mitigated by the use of alternative sanctions and other non-custodial measures, a national policy should be developed with a view toward their implementation.
7. Enhancing Coordination within the Justice System
An essential element of a well-functioning justice system is coordination. It is a fundamental need among institutions and actors of the justice system, and in key areas such as prosecutor-police relations, legal aid, anti-corruption efforts and international assistance.
First steps toward better coordination should begin at the leadership level. The Council of Coordination, a consultative body of the Ministry of Justice, should broaden its participation beyond the Minister, the President of the Court of Appeal and the Prosecutor General. The Council can do more to promote the coordination of policy throughout the justice system, although its role is largely to assist the Ministry in the elaboration of Government policy in the justice sector.
There is a continuing need for effective modes of coordination between prosecutors and police. Such efforts are often complicated by issues of translation, in part because of varying levels of fluency in Portuguese, Tetum and English among not only national but international actors as well. Various dispatches and police reports often require translation because, as of yet, the various elements in this sector do not always use a common language.
Legal aid would similarly benefit from greater coordination among the various entities providing such services. There is no official regulation of the quality and standards for private legal aid organizations, which likely provide the majority of such services in the country.
Similarly, at least four State institutions have a role in relation to the investigation of corruption and coordination is vital if this important task is to be accomplished. An effective working arrangement among these institutions needs to be established.
Finally, just as coordination among national actors is important, so too is coordination among international donors. The recent initiative of UNMIT to facilitate meetings at which donors can interact is commendable and should be continued.
8. Protecting Judicial Independence and Respecting the Separation of Powers
Judicial independence is a prerequisite to the rule of law. It is enshrined not only in international law, but also in the Constitution of Timor-Leste. Judicial independence must be observed in two ways. Not only must individual judges perform their judicial functions independent of outside influence or interference, but also the judicial branch as a whole must operate independently of the other, separate branches of government. Both the decisional independence of judges and the institutional independence of the judicial branch must thus be respected.
Judicial independence is not an end unto itself, but is a means to an end, ensuring that judicial decisions are made solely on the basis of the law applied to the facts of a particular case and not on the basis of outside influence or interference. Judicial independence is also grounded in the separation of powers, allowing judges to make decisions even when they run contrary to the preferences of another branch of government.
The current situation in Timor-Leste as it relates to judicial independence is problematic. Although the country’s judges have consistently asserted their independence in the cases that have come before them, the institutional independence of the judiciary is still not fully recognized by other state actors.
This fact has been made evident most recently in the case of Maternus Bere, who is under indictment for crimes against humanity and other serious offenses allegedly committed in Suai in 1999. Bere appeared before a Timorese judge and ordered held in Becora Prison as a pre-trial detainee. Despite the fact that no further judicial proceeding was held and no additional judicial order issued, Bere was released at the direction of a high official in the Timorese government. This disregard for a judicial order and direct interference with the judicial system was a grave violation of judicial independence and the separation of powers.
It is the responsibility of all those who serve in the four organs of sovereignty, including those at the highest levels, to respect judicial independence and the separation of powers. It is imperative that a commitment be made to promote a culture of respect for the rule of law and to avoid those actions that would jeopardize it.
9. Promoting Professional Responsibility
Those who would administer justice in Timor-Leste must be held to the highest personal and professional standards. They must be encouraged to see their work not simply as a job, but as a career in a profession in which they can take pride. Developing a strong sense of commitment to one’s career within a valued profession is an important step in reinforcing professional responsibility. The need to develop a culture of professional responsibility applies to all careers in the justice system. This includes not only judges, prosecutors, public defenders and private lawyers, but also court officials, police officers and prison officials.
An intrinsic part of professional responsibility is professional accountability. The key elements to ensuring accountability are supervision and oversight based on clearly stated standards of conduct. Accordingly, discipline should always be based on principle and not on personality.
In order to secure these values, each of the mentioned professional groups has, or should have, an applicable statute setting out the duties and rights of the members of the particular group involved. Each statute also establishes a Superior Council with responsibilities for the pertinent professional group. It is the function of the Superior Council of each group to support the professional development of those over whom they have responsibility and to ensure proper oversight as well as professional discipline. In each case discussed, steps have been or are being taken to accomplish these goals.
Training and education is also critical to professional development. In this respect, the Legal Training Centre is instrumental in facilitating the career paths of those it serves. Training should not only emphasize the basic requirements for entering the profession, but should maintain standards on a continuing basis. Moreover, ethical training is critical. Not only is it important to act according to ethical standards, but it is equally important to be perceived by the public as acting in an ethical way.
Finally, progress has been made with respect to the issue of adequate compensation for certain actors in the justice system. The amount of compensation for a particular position is widely viewed as a reflection of the value that society places on it. The recent action by parliament enhancing the salaries of judges, prosecutors and public defenders is thus a very positive step.
10. Bringing Justice Closer to the People
Significant progress has been made towards strengthening the formal justice system. In spite of these improvements, efforts to ensure a more consistent presence of all legal actors in every district court must continue. Moreover, the four existing district courts are inadequate in number to serve the entire Timorese public. In an attempt to fill this gap, judges report that they have engaged in mobile justice, trying cases in several towns. These efforts should continue, and other alternatives should be considered. New district courts should also be created.
Presently, a large part of the population faces substantial obstacles in accessing the formal justice system. In addition to physical distance from courts, other obstacles to access to the formal justice system include barriers of awareness, cost, language and culture. Furthermore, in relation to criminal violations, police are not always accessible at the community level.
As a result, the majority of all disputes in the country are resolved through customary law processes and alternative dispute resolution mechanisms. Customary law processes are widely used because of practical and cultural advantages they hold in relation to the formal justice system. There are, however, serious shortcomings with respect to customary means of dispute resolution, including their failure to respect fundamental human rights, especially those of women, and their lack of safeguards against abusive practices or unjust decisions. Even where such processes achieve a resolution, they possess no formal enforcement mechanism, leading to unimplemented decisions and referral to the courts in some cases.
The Ministry of Justice has been conducting a nationwide public consultation in relation to the legal recognition of customary law processes, as envisioned under the Constitution. Any initiative recognizing customary law should harmonize with the formal justice system and not operate as a parallel or separate system of justice.
11. Ensuring Justice for All
While the Constitution provides for guaranteed access to justice for all citizens of Timor-Leste, certain groups, such as women, experience particular hardship in receiving fair, affordable and timely justice. A great amount of progress has been made toward equalising rights and integrating gender considerations in Timorese legislation. Nevertheless, significant challenges for women continue to exist, including prevalent gender-based violence, lack of legal knowledge and access to courts, increasing human trafficking, and lack of economic resources.
In cases of domestic violence and sexual assault, pressure is put on women to settle such cases with traditional authorities rather than report them to the police. In those cases where police undertake an investigation involving violence against a woman, their training is often lacking. Moreover, the police suffer a number of logistical challenges that impact their ability to investigate such crimes. Similarly, lack of forensic capacity to obtain, store and test physical samples in cases of domestic violence could easily compromise an otherwise promising investigation. Finally, the lack of means to protect victims when they proceed to court is a significant issue.
Although reportedly more cases of gender-based violence were processed in the courts in 2008 as compared to 2004, many of those cases resulted in acquittals. This may be explained, in part, by the fact that some victims choose to remain silent during trial and not supply evidence against their alleged assailant.
One of the positive developments in relation to SGBV cases is the establishment of the national referral network, which includes VPUs, the MoSS and several NGOs, which provide support, assistance, counselling and shelter to victims. These organisations, however, still face a substantial lack of infrastructure, human resources and logistical support.
A large percentage of the population of Timor-Leste is under the age of eighteen and is particularly afflicted by a number of social problems such as poverty, unemployment and illiteracy. Moreover, in the absence of a legal regime directed toward children, they are without protection and their situation is even more precarious as a result.
There is a pressing need to create a legal framework that will deal with children and the issues that are specific to them such as parental responsibilities, adoption, guardianship and child protection. Similarly, priority should be given to legislative proposals dealing with juvenile offenders.
In addition to developing the law, there is a corresponding need to improve the skills of Timorese professionals who will be dealing with children. In this respect, it is important to enhance the skills of those tasked with identifying, reporting and dealing with child abuse. There should also be training of judges and other court actors with respect to any legislation enacted concerning children.
Currently, there is no judicial review of placement of children in alternative care and, overall, there is insufficient protection of the right of children to behead, in accordance with their age and maturity, at any proceeding that may impact their rights. Due consideration should be given to basic principles involving the best interests of children and respect for their views.
Finally, considering the key role played by the Department of Protection and Social Assistance of Vulnerable Children, the government institution charged with the protection of children who are at risk and exposed to abuse, there is a need for greater coordination in matters concerning justice for children between this department, the courts and other related institutions, including the Public Prosecution Service, the police and the Office of the Public Defender.
Land and property disputes
Disagreements over land and property are reported to be the most common category of disputes in Timor-Leste. To the extent that such matters are in fact settled, their resolution is largely accomplished outside the formal justice system as very few such cases are filed in court. There are reported, however, to be a large number of unresolved land contests throughout Timor-Leste. These, in turn, produce a level of tension among neighbours and within communities that can often lead to serious violence.
The issues pertaining to property and land ownership are complex as they have been subject to several different legal regimes over the last twenty-five years. It is extremely difficult to evaluate claims to a piece of land based on competing rights asserted under Portuguese law, Indonesian law, or simply the actual occupation of the land in question. Moreover, on the practical level, many records identifying property ownership were burned as a result of violence occurring in both 1999 and 2006. Similarly, turmoil in the past caused social dislocation and people were often forced to flee their property, which was then occupied by others. One additional complicating factor is that although the right of women to own land is recognized by law, such ownership rights have not always been traditionally recognized.
With donor assistance, a project is currently underway to address several land issues, ranging from law to registration. A draft law on land ownership has been discussed in a series of public consultations hosted by the Ministry of Justice. The preparation of this law should continue to be a top priority, and once it is adopted, judges and other legal actors as well as all those offering mediation services should be trained on land issues, including the new legislation.
12. Preparing the Next Generation
Preparing the next generation of legal professionals requires a multi-faceted approach involving educators, judges, prosecutors, public defenders, and lawyers as well as public and private support. The establishment of a legal studies programme at the National University of Timor-Leste (UNTL), the only accredited university in Timor-Leste with such a programme, has been a critical first step. A strategy is lacking, however, in relation to the broader educational effort required to supply the human resources of the justice system in the coming years. Moreover, no assessment of the long term human resource needs of the justice system has yet been undertaken.
Several other critical issues also remain unresolved. The two primary private universities that offer university-level degrees in law, the University of Dili and University of Peace, continue to lack government accreditation. Tetum could be a more accessible language for all students of law, but insufficient attention has been devoted to its development for legal purposes. No significant work has yet been done in relation to building a Timorese culture of legal scholarship in either Tetum or Portuguese. A self-sustaining domestic pool of professors and other instructors has yet to be developed. Women remain underrepresented among the professionals in the system, and an increase in the quality and size of the overall pool of potential law students is needed.
13. Speaking the Language of Justice
A subtext running throughout the report is that of language. As provided in the Constitution of Timor-Leste, Tetum and Portuguese are the country’s official languages. The latter has played a dominant role in the justice system, reflecting the extensive involvement of international staff from the Portuguese-speaking world. The corresponding influence of that language on legal drafting, training at the Legal Training Centre and the conduct of court proceedings have all made fluency in Portuguese a key element in the advancement of legal actors in the justice system. To that end, the Portuguese language capacity of many actors in the justice system has increased significantly over a relatively short time. Nonetheless, these gains have not eliminated the fact that language remains a challenge for most participants in the justice process, ranging from judges to litigants.
Consequently, two approaches are needed. One is to reinforce the educational campaign undertaken to date in relation to Portuguese language skills for both children and adults in order to begin to transform Timor-Leste into a more genuinely bilingual society. To that end, Portuguese language study should continue and be strengthened at the university level. Current initiatives at the level of primary and secondary education should also continue and be strengthened. The other approach, which is not inconsistent with the first, is to develop a “legal Tetum” sufficient to be utilized in relation to all aspects of the overall justice system. This will require an intensive and coordinated programme involving scholars, legal actors, linguists and translators.
14. Confronting Impunity and Requiring Accountability
The judicial system of Timor-Leste, as currently constituted, is not actively engaged in the process of addressing the crimes of the past or holding accountable those who committed them. There is no question, however, that Article 160 of the Constitution contemplates prosecution for offenses occurring between 1974 and 1999 in either the national court system or before an international court. Similarly, Article 163.1 provides for a hybrid special panel of national and international judges with jurisdiction over serious crimes committed between 1 January and 25 October 1999. The preamble of the Decree-Law promulgating the Code of Criminal Procedure also acknowledges the existence of such panels and Article 3 of the Decree-Law confirms that the legal framework for the operation of the Special Panels remains in place, although they are not currently functioning.
Regardless of whether an international tribunal were to come into being as recommended by the Commission of Experts, there are still numerous domestic indictments and arrest warrants pending against hundreds of defendants charged with crimes against humanity and other serious offenses committed during 1999. To the extent that the leadership of Timor-Leste chooses not to support a domestic judicial process to ensure that those responsible for past serious crimes are held accountable, it should nonetheless be made clear by both the UN and other donors that, if requested, they are prepared to provide the necessary resources to support such a process.
In any event, in light of the possible return to Timor-Leste of defendants who are already under indictment, such as Maternus Bere, national judges, prosecutors and defence lawyers should be provided appropriate training through the Legal Training Centre to handle such cases.
The Serious Crimes Investigation Team should continue to function and be appropriately supported and resourced until it has concluded all investigations and has provided to the Office of the Prosecutor General all materials and documentation necessary to permit those cases to be prosecuted in the future. Moreover, proper facilities should be arranged so that forensic and other evidence required by the SCIT can not only be stored, but also properly conserved, considering the challenges presented by the local climate. Finally, the SCIT should also be supported to help develop the domestic capacity to prosecute those serious crimes investigated by the unit, whether they amount to violations of domestic or international law.
As noted throughout this report, a significant amount of progress has been made in developing the overall justice system of Timor-Leste. Although a number of challenges and needs continue to exist, the Timorese with whom the team interacted demonstrated a high degree of dedication and commitment. Although there is no question that they foresee the need for continued advice and assistance from the international community, they are motivated by a vision of a justice system run by the Timorese for the Timorese. This is a goal worth striving for and is a cause that deserves the continued support of the international community.
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at Monday, October 19, 2009