22 August 2011

Doubts about judicial independence as Chief Judge Ximenes meets with President Ramos Horta

Claudio Ximenes, Chief Judge of East Timor
East Timor Legal News 19/08/2011 Source: Timor Post 19/08/2011 - The President of the Court of Appeal, Claudio Ximenes, has held a meeting with President Jose Ramos Horta to report to the president about his work, the processing of criminal cases and the recent violence in Zumalai.

"I met with the president to inform him about the general situation on the courts' work," Ximenes said.

Ximenes said based on the legal procedures, the police should make an application to the Public Prosecutor for the issuing of warrants of arrest to capture the offenders who burnt down the residents' houses.

Legal proceedings for the case are very important as they burnt down the innocent people's houses, he said.

In a separate report by Diario National on 19/08/2011, the chief judge called on the Timorese people to stay away from violence and to strengthen national unity to move forward with the country's development.

Ximenes also expressed his sympathy and solidarity with local residents who had lost their homes and properties. "I am very sad because many people have lost their homes and properties in the clash," he said.

He called on the police to capture the suspects who were believed to have been engaged in burning the residents' house.

The judicial system should not only be independent from the other organs of the state such as those represented by the executive power, in this case, the President, but it should also be seen to be independent and impartial.

It strikes an odd note that the Chief Judge should hold a meeting with the President to inform him of the condition of the courts - or to discuss any other matter. Any communications should go through the Court's officials.

It is not appropriate, in a state based on the democratic principle of the separation of powers, that the Chief Executive should hold a meeting with the Chief Judicial officer.

They should remain at arm's lenghth at all times and should appear to be at arm's length on all matters at all times.

As Article 121(2) of the Constitution of East Timor provides:

"In performing their functions, judges are independent and owe obedience only to the Constitution, the law and to their own conscience."

The judges do not owe obedience to any other organ of sovereignty; namely, the President or the Parliament. 

Furthermore, Article 122 of the Constitution provides that the Courts are independent and subject only to the Constitution and the law. They are not subject to any other authority whatsoever.

One of the reasons for this is that the President signs off on laws enacted by the Parliament but it is the function of the Court to decide constitutionality of those laws so any appearance of an inappropriate relationship between the President and the Chief Judicial officer should be a matter of some concern.

There may be extraordinary circumstances where it might be appropriate for the judges to meet with members of the executive such as in times of constitutional crisis but even if any meetings are of an entirely neutral nature, the principle that the judiciary must remain aloof from any political or social debate is undermined.

It is essential for the continued public confidence in the independence and impartiality of the judiciary which is a fundamental constitutional principle of the separation of powers between the executive, legislature and the judiciary.

Public confidence in the constitutional order can only be  maintained where that principle is strictly observed at all times, particularly by those who have the privilege of heading the judiciary.

In the common law tradition, it would be entirely inappropriate for judges to meet with members of the executive or the legislature. As Home Secretary Charles Clarke of the United Kingom, for example, stated:

    "I have been frustrated at the inability to have general conversations of principle with the law lords ... because of their sense of propriety.

    "I do find that frustrating. I have never met any of them. I think there is a view that it's not appropriate to meet in terms of their integrity.

And that should be the case also in any aspiring democracy.

The President of the Parliament has also recently criticised the court's decisions. That is also entirely inappropriate.

Both of these manifestations - meetings between the executive and the judiciary and criticisms of the courts by the parliamentary leadership - that emasculate the independence and impartiality of the courts should not go unnoticed by those striving for the rule of law and democracy in East Timor.

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