03 November 2017

East Timor Court Challenge to Presidential Pardons

NOTE: HISTORICAL ARTICLE REPUBLISHED A group of East Timorese citizens has launched a legal challenge to the decision of President of the Republic, Jose Ramos-Horta's, to grant executive clemency to 94 prisoners on 20 May 2008. On Friday, 27 June 2008, eleven Timorese citizens delivered a petition to the Provedor for Human Rights and Justice (PDHJ) asking him to use his powers according to Section 150 of the Constitution to request that the Court of Appeals examine the constitutionality of the Presidential Decree Presidential Clemency (No. 53/2008) of 20 of May .

The eleven citizens are Fernanda Mesquita Borges (Member of the National Parliament), Jos Luis de Oliveira (Director, Association HAK), Father Jos Filipe de Jesus Pereira and Higinio Posinato Zamor E Silva (Justice and Peace Commission, Dili Diocese), Father Angelo Salsinha Trindade (Youth Department, Dili Diocese), Jos Amaral (NGO Forum), Maria Afonso de Jesus and Edio Saldanha Borges (Board members, Timor-Leste National Alliance for an International Tribunal), Sisto dos Santos (National University Student Front), Manuela Leong Pereira (International Center for Transitional Justice, Timor-Leste) and Luis de Oliveira Sampaio (Timor-Leste Lawyers Association).

The request was made the request based on the Constitution of the Democratic Republic of East Timor, Article 48 (right to petition).

The petition was delivered to East Timor's Human Rights Provedor, Mr. Sebastiao Dias Ximenes, in his office on Kaikoli Street in Dili on June 27 and to the East Timor Appeals Court by the group's lawyer, Ms. Natercia Barbosa de Deus, on the same day.

The petition asks the Appeals Court to declare the Presidential Decree on the executive clemencies null and void and that the decree be revoked and not implemented. According to the petitioners, the Presidential Decree is unconstitutional because it does not follow requirements or does not properly implement Section 85 (i) that pardons or commutation of sentences by the President must consult with the Government.

President Jos Ramos-Horta issued his clemency decree without first listening to advice from Government. The decree was publicized on 19 May 2008, and the letter with the Minister of Justice's recommendations reached the President on that same day. This means that when the President issued his decree he had not considered the recommendations of the Minister of Justice who is responsible for the prisoners' eligibility.

The facts also reveal that in the Justice Minister's letter, Ms. Lucia Lobato recommended that only 83 of the prisoners have their sentences reduced, between two to six months each. However, in the decree President Ramos-Horta granted 94 prisoners clemency, with their sentences commuted or reduced.

Additionally, on 20 May 2008, the Prime Minister sent the President of the Republic a letter saying that the situation of prisoner Rogerio Lobato is very sensitive and that the concerns of civil society must be taken into account. Prime Minister Xanana Gusmao suggested that Rogerio Lobato's sentenced be reduced by only one year, and that he must return to Timor-Leste to complete his sentence. However, President Ramos-Horta did not consider the suggestions from Prime Minister Xanana Gusmao and had already reduced Mr. Rogerio Lobato's sentence by three and a half years. That is why Mr. Rogerio Lobato is already free.

Rogerio Lobato, former Minister of the Interior, was convicted of distributing guns to civilians to kill leaders of opposing political parties and petitioners who had deserted the military. He was sentenced to seven years and six months imprisonment on 10 May 2007, when he was incarcerated. He had been under house arrest since 18 September 2006. In early August 2008, he was hospitalized and on 9 August 2008 he left Timor-Leste for medical treatment in Malaysia. He was provisionally free after the President's 19 May clemency decree.

In addition, the Presidential Decree did not adhere to the penal procedure, because the decision on executive clemency or commutation of sentences for prisoners must have a legal basis and follow clear criteria. According to this decree, the President considered the situation of all the prisoners as the same. Also the decree does not show the process of reintegration of the prisoners back into the community. The decision may create confusion about the legal process, and may create a threatening situation again for some of the prisoners who return to live in the community. If there are problems for the prisoners, who is actually responsible?

On the other hand, the decree reveals a conflict of interest. The President is using his powers to serve personal interests (to satisfy his friends) rather than the public interest, according to principles found in Sections 1 and 6 of the Constitution of RDTL (democratic state and state objectives).

Finally, the worst is that the Presidential Decree violates Section 160 of the Constitution and the principle of international law for serious crimes that violate human rights which our state adheres to, according to the principles in Section 9. According to these sections, perpetrators of serious crimes are not eligible for executive clemency. Those who commit serious violations of human rights must be tried by a national or international court and be properly sentenced, thus all people learn not to repeat nor continue such practice in the future. Unfortunately, our President does not respect these human rights laws. That is why convicted murderers like Jhoni Marques and his group of pro-Indonesia militia who killed nuns, priests, an Indonesian journalist, and raped many women in Lospalos in 1999 already enjoy freedom.

Jhoni Marques was sentenced to 33 years and 4 months imprisonment for Crimes Against Humanity including torture, murder, deportation or forcible transfer of civilian population and persecution on 11 December 2001 by the Special Panel for Serious Crimes in Dili, Timor-Leste. Upon appeal, his sentenced was reduced to 25 years. He entered prison on 8 May 2000 and was provisionally released after the President's 19 May clemency decree.

The decision of the President is a gross injustice to the victims who still suffer because they have not yet received adequate justice and reparations from our State. It is also unjust to other prisoners who have not received a final decision from the courts. For example, people who illegally distributed guns and authored the crimes are already free, and people who received and used them to shoot people are still in prison. Where is justice? Where is truth? How will the state guarantee that crimes by armed militia that occurred in 1999 and 2006 will not happen again?

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