24 November 2013

East Timor Court of Appeal upholds application for disqualification of Chief Judge Ximenes due to bias

Judge Ximenes. Photo: Centru Jornalista Investigativu Timor-Leste
ETLJB 24 November 2013 - In an extraordinary decision by the East Timor Court of Appeals in September last, the judges of the Court other than its President, Claudio Ximenes, upheld an application for his disqualification due to bias in proceedings concerning the corruption trial of the IV Constitutional Government's Minister of Justice, Lucia Lobato. Ms Lobato was convicted of certain crimes relating to her time in office including corruption and abuse of power and sentenced to 5 years in jail in June 2012.

The full Court of Appeal for East Timor granted a request for recusation (disqualification due to bias) against Judge Claudio Ximenes following a complaint filed by prosecutors in the proceedings involving the former Justice Minister Lucia Lobato.

The President of the Court of Appeal was thus unable to participate in proceedings concerning the former Justice Minister. The grounds of the application appear to have been that the country's chief judge had been in personal communications with the former Justice Minister during the trial and related processes. The judgement of the President's fellow judges was handed down in August.

According to a machine translation of a report in LUSA, the decision of the full Court of Appeal referred to above was taken following statements made to the press by the President.

The judgement emphasised that "[f]rom the point of view of the average citizen, given the express public demonstration revealing a judgment in favor of the defendant  referring to the process that ran against her in the Court of Appeal, is susceptible to generate public opinion in this country (certainly with some foundation ) of feelings of personal favoritism, as well as recognition of regular contact with the defendant during the course of the Habeas Corpus, it is to admit the susceptibility of suspicion about the fairness of Mr. Presiding Judge of the Court of Appeal."

The application for Habeas Corpus that had been filed by the defence attorney for Lucia Lobato was rejected by two judges of the Court of Appeal with the dissenting opinion of Claudio Ximenes, who explained why he was in favor of the immediate release of Lucia Lobato, considering that there are procedural errors.

According to the LUSA report, the judges who signed the judgment that upheld the application for recusation against the Chief Judge were also the target of accusations of bias by the former Justice Minister of East Timor’s defense lawyers, who had also filed applications for recusation against them but the Court of Appeal rejected those requests of suspicion of bias against the judges.

LUSA also reported that ,in a statement to the press, the East Timor Judicial System Monitoring Program warned that "the public can understand that the decisions were not neutral or fair because decisions on extraordinary appeals were taken by the same judges" in the first appeal.
(Source: LUSA 23/09/2013 Edited by Warren L. Wright)

It is not the first time that the competency of the Chief Judge has been seriously questioned. In 2003, the National Parliament had to enact a law to override the decision of Ximenes that the applicable law of East Timor was Portuguese law. The law, Law No 10 of 2003, commenced with the following preamble:

"Interpreting a law literally, outside its context and system, aloof from reality, and in violation of the most elementary rules of legal hermeneutics, leads to an absurdity, which may undermine the country’s stability, as it tends to bring about a situation of institutional crisis that would otherwise not exist.

Section 1 (Authentic interpretation) then went on to provide that:

Under the terms of the provision of section 1 of Law No. 2/2002, of 7 August, applicable legislation in East Timor on 19 May 2002 means all Indonesian laws applied and that were in force “de facto” in East Timor, prior to 25 October 1999, as provided by UNTAET Regulation No. 1/1999."

The law was necessary because the Court of Appeal, under the stewardship of Claudio Ximenes had applied Portuguese law in  three appeals applying Portuguese law in East Timor. In each case heard before the Court on the majority of the Court , namely Judge Claudio Ximenes (Presiding) and Judge Jose Antunes (Portugese International Judge) affirmed their position that the appropriate subsidiary law in East Timor is Portuguese, rather than Indonesian law.

But the the third member of the Court, Judge Jacinta Correia da Costa, whose jurisprudence was ultimately confirmed as rational and correct, delivered a dissenting opinion expressing her view that the correct interpretation of the Constitution of East Timor, taken together with United Nations Regulations 1/1999, was that Indonesian Law should be the subsidiary law in East Timor. In her dissenting judgment, Judge da Costa emphasised that it was Indonesian, and not Portugese law, which was being applied in East Timor prior to October 1999.

In another controversial case before the Court of Appeal, On August 14, the Court of Appeals issued a decision that the re-election of Mari Alkatiri and Francisco "Lu'olo" Guterres to the leadership of the ruling Fretilin party by a show of hands at the party congress in May was legal. The decision was in response to a case brought by members of Fretilin Mudansa, a faction within the ruling Fretilin party that opposes the leadership of Mari Alkatiri. ("Mudansa" in this context means "change" or "reform".)

The Mudansa group had put forward Jose Luis Guterres, then East Timor's Ambassador to the United Nations and now Foreign Minister, to run against Alkatiri at the May congress, and many observers expected him to win. However, he withdrew from the race in protest when the delegates voted to abolish the secret ballot and hold elections by a public show of hands, a move seen by many as facilitating widespread bribery and intimidation by the pro-Alkatiri faction (see reftels). 3. (U) Last month the Fretilin dissidents filed a case claiming that the election violated Article 18c of the Political Party Law, which provides that party leaders "can only be elected by means of a direct and secret vote of all party members or of an assembly representing them". 4. (U) The Court's decision was based not on the Political Party Law but rather on the Civil Procedure Code, stating simply that it could not adjudicate the case because it was filed past the time limit stipulated in the Code of Civil Procedure. (Comment: Contrary to the court's opinion, the code article in question appears to apply only to interlocutory motions in ongoing cases. It does not purport to create a prescriptive period --- in common law terminology, a "statute of limitations" --- after which a party aggrieved by some action or event is barred from bringing a lawsuit. Such prescriptive periods are typically measured in years rather than days. End comment.) 5. (U) After holding that the action was barred because it was filed too late, the Court went on to state its opinion that the petitioners (plaintiffs) would not have prevailed on the merits even if they had filed their action on time. The Court noted that article 18c of the Political Parties Law gives parties two options for electing national leaders: election by all party members, or election by an assembly representing party members. The Court held that the "direct and secret vote" requirement applies only to elections by all party members, not to elections DILI 00000428 002.2 OF 003 by an assembly. (Comment: Contrary to the Court's opinion, the language of article 18c requires "a direct and secret vote of all party members or of an assembly representing them." The words "or of" preceding "an assembly representing them" ("ou de assembleia deles representiva" in the original Portuguese) can only refer back to the phrase "a direct and secret vote." End Comment.) 6. (U) Finally, the Court held that even if the action had been timely filed and even if the show of hands was illegal, it had no power to order the remedy requested by petitioners, an extraordinary party congress at which a secret ballot would be held to elect new leaders. The Court also briefly addressed other allegations by petitioners, including that the leadership elections at the last Fretilin Congress in 2001 were by secret ballot and that the show-of-hands ballot at the recent Congress was part of a pattern involving bribery and intimidation of delegates, as irrelevant to the legal case.

Decision provokes further criticism of Court of Appeals President: The decision has been subjected to harsh criticism both by Timorese lawyers and by international observers in Dili. Much of this criticism is directed personally at the decision's apparent author, President of the Court of Appeals Claudio Ximenes, who has been accused in the past of shoddy decisions tending to favor the position taken by former Prime Minister Alkatiri. In particular, most observers read the plain language of article 18c as clearly requiring a secret vote either of all party members or of a representative assembly.

For instance, Dionisio Babo Soares, the co-chair of the bilateral Truth and Friendship Commission who is a trained lawyer*, said the decision was "stupid" but consistent with many other decisions made by Claudio Ximenes, the Court's President (chief judge).

Soares noted that there is increasing concern among both East Timorese and internationals that Ximenes, a Portuguese judge of Timorese extraction who has been serving as East Timor's chief judge since 2003 while on leave from his position in Portugal, not only makes key decisions based on political rather than legal exigencies, but that he produces low-quality and incoherent arguments. Other Timorese lawyers, as well as Dili-based foreign diplomats and United Nations lawyers, have made similar comments. Source: http://www.cablegatesearch.net/cable.php?id=06DILI428&version=1314243000 Accessed 24/11/2013) * and now the Justice Minister of the V Constitutional Government) For an analysis of this case, see The Law on Political Parties (No 3/2004) & the Decision of the Timor-Leste Court of Appeal in the case of Vitor da Costa & Ors v Fretilin

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Public Prosecution presents new witnesses for Minister Lobato's case
Former East Timor justice minister receives jail sentence
Parliament removes Minister Lobato’s political immunity
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Perversion of the rule of law in Timor-Leste and its impact on State legitimacy

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