tag:blogger.com,1999:blog-13648195434874291182024-02-18T23:08:01.280-08:00East Timor Law JournalEditorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.comBlogger65125tag:blogger.com,1999:blog-1364819543487429118.post-74395077470579310572018-08-05T18:08:00.001-07:002018-08-05T18:08:04.730-07:00East Timor Law and Justice Bulletin: East Timor Law Journal<a href="http://www.easttimorlawandjusticebulletin.com/2018/08/east-timor-law-journal.html?spref=bl">East Timor Law and Justice Bulletin: East Timor Law Journal</a>: The East Timor Law Journal (ETLJ) was a project that I began in 2004, some 14 years ago. I have not paid much attention to that as most ...Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-45976155152711775582018-08-05T17:32:00.001-07:002018-08-05T17:32:35.805-07:00East Timor Law and Justice Bulletin: East Timor: Whither Democracy?<a href="http://www.easttimorlawandjusticebulletin.com/2018/08/east-timor-whither-democracy.html?spref=bl">East Timor Law and Justice Bulletin: East Timor: Whither Democracy?</a>: What contortions and distortions we bear witness to in East Timor. And yet a deafening silence or grave judgements of error from the defen...Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-86824351732184858352012-06-30T06:37:00.000-07:002013-06-09T12:36:41.342-07:00Environmental laws fail to protect endangered fauna in East Timor<div>
Citation: 2009 ETLJ 19</div>
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The images in this article of the carcasses of several protected cuscus apparently for sale at a market place in the eastern town of Los Palos in East Timor were published on the blogspot <a href="http://timor-agricola.blogspot.com/2009/02/meda-phalanger-orientalis.html">Timor Agricola</a> on 14 February 2009.</div>
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Under Indonesian law, the species Phalangeridae (Cuscus) and all species of the genus are protected against capture, possession and trade by Surat Keputusan Menteri Pertanian No 247/Kpts/Um/4/1979 (Decision of the Minister for Agriculture).<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEipmjvca2OFY136eg5vSwWGaB2i7ma7ld-mmMbByvSztprJNH_15hWwUazcXBgL8sdrk6_DKvaHrHteq-7xlhJr09Xj_Ip9G61JA9TOlvTkErsb5SHhg8y1hXVdynhImdEKtSs5VZEbTCxw/s1600/cus-cus-east-timor.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="150" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEipmjvca2OFY136eg5vSwWGaB2i7ma7ld-mmMbByvSztprJNH_15hWwUazcXBgL8sdrk6_DKvaHrHteq-7xlhJr09Xj_Ip9G61JA9TOlvTkErsb5SHhg8y1hXVdynhImdEKtSs5VZEbTCxw/s200/cus-cus-east-timor.jpg" width="200" /></a><br />
As the greater substance of East Timorese law is the Indonesian law as applied by UNTAET Regulation No 1 of 1999 on the authority of the transitional administration in East Timor and by the Constitutionand subsequent legislation enacted by the legislative organs of the Timorese state, that Indonesian Ministerial Regulation is in force in East Timor and the killing and trade in cuscus in East Timor is a violation of the law.<br />
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In addition to the applicable Indonesian law, one of the earliest legislative interventions by the United Nations Transitional Administration in East Timor was Regulation of 30 June 2000 No 19 of 2000 on Protected Places. It includes the following provisions:<br />
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Section 3<br />
Endangered Species<br />
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3.1<br />
For the purposes of the present regulation, "endangered species" shall mean a species of animal or plant at risk of extinction within East Timor. The following species of animal shall constitute endangered species within East Timor:<br />
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(a) Sea tortoises;<br />
(b) Sea turtles;<br />
(c) Marine mammals, including bottlenose dolphins, whales and dugongs;<br />
(d) Wallabies;<br />
(e) Crocodiles;<br />
(f) All animal and plant species listed in Appendix I or Appendix II of the Convention on the International Trade in Endangered Species*; and<br />
(g) Any other plant or animal species designated as endangered by the Transitional Administrator.<br />
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3.2 Endangered species and the habitats of endangered species shall be protected throughout the terrestrial and marine territory of East Timor. Under the present regulation:<br />
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(a) the killing, injuring, harming, taking or disturbing of any endangered species;<br />
(b) the destruction in any way of the habitat of an endangered species;<br />
(c) the selling of an endangered species or the selling of any product made from an endangered species; and<br />
(d) the export of an endangered species or any product made from an endangered species,<br />
shall be prohibited.<br />
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3.3 A person or legal entity wishing to conduct scientific research by taking samples from an endangered species or its habitat shall apply to the Transitional Administrator for an exemption from the operation of section 3.2.<br />
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3.4 The form of an application for an exemption shall be prescribed by directive.<br />
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3.5 The granting of an exemption may be subject to conditions. No exemption shall be granted in respect of research that imperils the survival of an endangered species in East Timor.<br />
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Marsupials such as the cuscus are protected wherever they exist for good reason - because of their unique genetics and their rarity. The capture, killing and trade in the protected cuscus in East Timor is a matter that the government, committed to environmental protection in East Timor, should be formulating a policy about and instructing the law enforcement agencies to implement the law to end the trade in this and other endangered species in East Timor.<br />
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* Cuscuses are listed in the Appendices to the Convention<br />
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This is an edited machine generated translation of the Portuguese text of the post on Timor Agricola:<br />
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The meda is a marsupial that lives in the trees of the forests of Timor. It can also be found on neighboring islands of Indonesia from Timor, the Moluccas to New Guinea. It was apparently introduced in Timor by humans 6,500 years ago, from New Guinea. The meda animal belongs to the same order of the koala, the diprotodontia.<br />
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The scientific name of the meda is an allusion to the fact that two phalanges in each foot together by a fold of skin that the animal uses to groom.<br />
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We can find this animal in the primary forests of Lore or Jaco, in secondary forests throughout the island and even in gardens and orchards.<br />
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In Muslim areas of Indonesia, religion prohibits the hunting of meda. In other regions, it is an important part of diet of the people since prehistoric times, providing animal protein to a diet that is usually lacking in these nutrients.<br />
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The meda are domesticated quite easily. In Dili, they are frequently seen on the streets carried on a long stick that a man hangs from his shoulder, and where the meda is desperately clinging.<br />
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These animals can weigh up to 4.5 kg, but usually it weighs around 2 kg. It has a long tail from 28 to 42 cm, which it uses to clingi to the trees and is devoid of hair on end. The tails of males are completely white. The fur is thick and similar to wool. In adult males the color varies from white and dark gray. The females have brown hair brown or gray and both sexes have a black stripe on the dorsal neck and tail. The young are maroon. The marsupial pouch of the female has four nipples. The feet are particularly characteristic, because the fingers are opposable as in humans.<br />
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The following is an extract from <a href="http://www.ethnobiomed.com/content/3/1/5">Fataluku medicinal ethnobotany and the East Timorese military resistance</a> :<br />
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The small intestines of the cuscus (Phalanger sp.), a small nocturnal marsupial, were also used to treat malaria. While collecting medicinal plants, the two FALANTIL guides constantly scanned dead standing trees for signs of the cuscus' nest. When a nest was spotted, one of the men climbed the large dead standing trees unaided and removed the cuscus by the tail. The primary reason for hunting the cuscus was for the meat, however, the small intestines can be boiled or roasted and eaten to treat malaria. It was believed that the small intestine has curative properties because the cuscus feeds heavily on Derris sp. and Tinospora smilacina. T. smilacina is used traditionally in Australia to treat infections and inflammatory conditions and was found to have significant anti-inflammatory activity by Li et al. Furthermore, Derris spp. are traditionally used as fish poisons throughout South East Asia and have highly active compounds known as rotenones.<br />
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The Common Cuscus Description: Classis: Mammalia Subclassis: Theria Infraclassis: Marsupialia Ordo: Diprotodontia Subordo: Phalangeriformes Superfamilia: Phalangeroidea Familia: Phalangeridae Subfamilia: Phalangerinae Genus: Phalanger Species: Phalanger orientalis<br />
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This article was first published on the <a href="http://easttimorlegal.blogspot.com.au/2009/07/environmental-laws-fail-to-protect.html">East Timor Law and Justice Bulletin</a> on 4 July 2009<br />
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Related articles:<br />
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<a href="http://easttimorlawjournal.blogspot.com.au/2012/05/sandalwood-and-environmental-law-in.html">Sandalwood & Environmental Law in East Timor</a><br />
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<a href="http://easttimorlawjournal.blogspot.com.au/2012/05/tara-bandu-adat-concept-of-environment.html">Tara Bandu: The Adat Concept of the Environment in East Timor</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com2tag:blogger.com,1999:blog-1364819543487429118.post-38266095349439340692012-06-15T07:58:00.000-07:002013-06-09T12:39:10.921-07:00New gun laws in East Timor defeated in Parliament2009 ETLJ 18 New gun laws in East Timor defeated in Parliament<br />
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Author: Warren L. Wright BA LLB<br />
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The government of East Timor has proposed a new law to regulate guns. But according to the opposition party, FRETILIN, the draft law would give the Commander of the East Timor National Police the sole and discretionary power to authorize civilians to obtain and possess firearms.<br />
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The history of firearms in the hands of civilians has contributed to all the bloody episodes in the country's tortured history and the new law comes in the wake of the 2006 illegal weapons distribution case when the then Fretilin government Interior Minister, Rogerio Lobato, was involved in the distribution of weapons to civilians. This illegal weapons distribution contributed to a catastrophic breakdown in law and order in East Timor and Mr Lobato was subsequently sentenced to more than 7 years imprisonment for his role in the weapons distribution and manslaughter.<br />
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The new law was vigorously opposed in the National Parliament with the opposition particularly concerned that there was no oversight or appeal mechanisms over the sole and discretionary power of the Police Commander to authorize and decline licences. The East Timor National Police was identified as a highly politicized and weak state institution by the 2006 UN International Commission of Inquiry into the violent crisis that engulged the country in 2006.<br />
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According to the Fretilin opposition, the lack of oversight and appeal mechanisms exposed the danger that the legal discretion conferred on the Police Commander could be used politically and improperly by allowing civilians with one political inclination access to firearms and deny others access because of their political affiliations. This key provision of the draft weapons law was defeated in the National Parliament on 25 June 2008 in a heated debate and the provision was deleted from the draft. This was the operative section, and without a substituting clause, the law has no mechanism to authorize the issuing of firearms licenses.<br />
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FRETILIN's parliamentary leader, Aniceto Guterres said after the debate that "Those who need to carry weapons in the course of their duties, such as the Defense Forces and Police are able to do so. They have their own laws that permit it. The public do not want to widen that category to include persons for whom it is not essential they have firearms to perform their duty effectively and lawfully.<br />
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We reject totally the argument by some AMP [Government] MPs that many others are potentially in danger whilst performing their duty and should therefore be able to carry firearms. If we apply this category, then Timor-Leste will potentially be like the 'Wild West', where everyone will be toting guns. We don't want that kind of society and its clear neither do our people. Like our people, we reject this 'armed to the teeth' approach to living," added Guterres.<br />
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"We need consensus on laws such as these. We in FRETILIN will always be open to dialogue towards enacting a sound, workable anti-gun law that embodies our people's aspirations and that has been attained by consensus. We need a strong law that says, 'Less Guns in Our Midst! Let's End the Culture of Violence!' That's what we all want," Guterres said in closing.<br />
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First published on the <a href="http://easttimorlegal.blogspot.com.au/2008/06/new-gun-laws-in-east-timor-defeated-in.html">East Timor Law and Justice Bulletin</a> on 27 June 2008<br />
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Related Article<br />
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<a href="http://easttimorlawjournal.blogspot.com.au/2012/05/commentary-on-draft-arms-law-in-timor.html">2008 ETLJ 4 Commentary on the Draft Arms Law in Timor-Leste</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-45021752538438015052012-06-15T05:39:00.000-07:002013-06-09T12:38:18.046-07:00Homosexuality in East Timor2009 ETLJ 17 Homosexuality in East Timor - ETLJB 25 April 2009 SYDNEY - The rights of the homosexual citizens of East Timor have proven to be a fertile ground for virulent anti-gay vilification by some of East Timor's political leaders. Discussion of the issue in the public domain has also provided an opportunity for the persecution of gay men and women in East Timor through the hysterical anti-human and anti-Christian condemnations of the Roman Catholic Church.<br />
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There is a significant gay dimension to East Timorese society. But a proposed constitutional guarantee of the rights of homosexuals in East Timor was, under pressure from the Church and with the approval of homophobic members of East Timor's national parliament, excised from an early draft of the Constitution leaving the gay community susceptible to marginalisation, discrimination and hate-motivated violence. It was on that occasion that a prominent politician denied that there were any gay people in East Timor and declared homosexuality a disease.<br />
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The Church's influence in East Timor has actually contributed to the promotion of homosexuality, principally among East Timorese men. Strict compliance with bans on pre-marital sex and an oppressive social regime that seeks to control Timorese women's sexuality in East Timor have most certainly restricted the opportunities for young East Timorese men. But primal human compulsions, in the end, so to speak, find a way of being expressed.<br />
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The protection of the rights of gay people in East Timor should not be a matter left outside the mainstream concerns of the justice system. And yet not a single cent of the millions upon millions of dollars of donor money has been dedicated to this.<br />
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Gay civil rights movements in advanced secular democracies agitated and achieved unprecedented legal recognition of equality before the law and impartial access to the protections afforded by the law to straight citizens. These achievements did not come about without a long and injurious campaign to refute the prejudices of the conservative Church and to drag the State to entrench secular anti-discrimination and anti-vilification laws and to delete a wide range of laws and policies that discriminated against homosexual people.<br />
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If East Timor is to be credibly received as a state based on the rule of law and international laws and standards as its Constitution mandates, both clear policies and legislation must be presented by the Government to the Parliament for enactment to ensure the protection of equal rights to all citizens.<br />
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Such efforts will also create a suitable legal and social environment for managing HIV-AIDS infections in East Timor. Unfortunately, as the whole world knows, the spiritually-unstable leaders of the Roman Catholic Church continue to ban the use of condoms as a protective measure to avoid infection. In East Timor, this immoral doctrine will result in the avoidable deaths of men and women.<br />
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Intrusions of religious doctrines into the formulation of social policies and legislation in East Timor is a grave error - morally, jurisprudentially and constitutionally.<br />
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First published on the <a href="http://easttimorlegal.blogspot.com.au/2009/04/homosexuality-in-east-timor.html">East Timor Law and Justice Bulletin</a> on 25 April 2009<br />
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Related Article<br />
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<a href="http://easttimorlawjournal.blogspot.com.au/2012/06/hiv-aids-and-homophobia-in-east-timor.html">2009 ETLJ 16 HIV-AIDS and Homophobia in East Timor</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-19971707780353442192012-06-15T05:30:00.000-07:002013-06-09T12:40:13.089-07:00HIV-AIDS and Homophobia in East Timor2009 ETLJ 16 HIV-AIDS and Homophobia in East Timor<br />
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Author: by Warren Wright BA LLB (founding member of the New South Wales HIV-AIDS Legal Centre)<br />
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In its <a href="http://www.jsmp.minihub.org/English/webpage/publi/East%20Timor%20and%20Indonesia%20Action%20Network.pdf">Comments on the U.S. Department of State Country reports on Human Rights Practices for 2008</a>, the East Timor and Indonesia Action Network (ETAN) andWest Papua Advocacy Team (WPAT) noted that, in East Timor:<br />
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There is pervasive bias against homosexuals, keeping nearly all closeted.<br />
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People with HIV/AIDS are largely unidentified due to lack of public information and testing.<br />
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HIV may be far more widespread than public health officials admit, according to some experts.<br />
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AIDS casualties are listed as dying from tuberculosis or other opportunistic diseases.<br />
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The lack of access for HIV-positive people to information, testing and health care, combined with common extramarital sexual relations, will likely kill many people in coming years.<br />
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In 2005, the author of the blog Dilly Dallying posted <a href="http://samanddaniel.blogspot.com/2005/11/homophobia.html">an account of encounter with homophobia in East Timor</a>. On 10 November 2005, the author wrote that a Timorese woman had expressed virulent homophobic comments. The woman was young, supposedly well educated, from a very well to do family and worked for a Human Rights NGO. Her comments, the blog author reports, in particular about gay men were outrageous. She said that there were no gay people in Timor before Indonesia invaded and that gay men were responsible for the spread of HIV/AIDS.<br />
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That blogger also reports on a chapter in a Tetun language book called "Kuidadu an" (Taking care of yourself). Under the sub section called "Extramarital Sex", were included the following words: prostitute (three different words), cross dresser, man who acts or dresses like a woman; homosexual (all one word); effeminate heterosexual male; tomboy, woman who acts like a man; homosexual; lesbian; cheap (easy to get; mainly applied to women); mistress (in addition to the wife); take a mistress. To make matters worse, the woman who wrote the book is a Dutch Australian academic.<br />
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Then, more was to come, says the Dilly Dallying blogger:<br />
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"My Tetun tutor told me that he didn't like any of "this". When I questioned him as to what "this" was, he said, "all these people". I guess I shouldn't have been shocked as this young man has expressed so many views concerning women (eg there is no such thing as rape in marriage because of course, if I want sex with my wife, she must give it to me!), gender and children that adding homosexuality to the bag covers thoroughly the whole issue of sex and gender.<br />
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However, at times like this, I simply cannot shut my mouth and say nothing. I explained to him that being homosexual is a human right and that in countries such as my own, such people are (generally speaking) accepted and protected from discrimination in law (mostly). I also told him that homosexual couples could marry in four countries including two that are Catholic and that perhaps one day, this too will happen in Timor. He just tut tutted and shook his head in disbelief that this was so and was probably thinking how strange and appalling we Westerners are. Little did he know that in my mind, I was thinking how bloody lucky I was to be born in the West and not in Timor."<br />
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Dilly Dallying is right to point out these expressions of homophobic slander of homosexuals because they reveal how deeply entrenched the primitive ideology of homophobia is in East Timorese society - thanks to the Catholic Church's antihuman, intolerant and vilificatory doctrines on homosexuality.<br />
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Its impacts from programs to reduce the transmission of HIV that do not take due account of the gay community as a most-at-risk group are fatal for the people those programs are supposed to be focused on.<br />
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The East Timor National Strategic Plan for a Comprehensive and Multi- Sectoral Response to HIV/AIDS/STI. 2002 2005 from the Ministry of Health does not contain a single reference to homosexuality, homosexuals or homophobia. There is only a single reference to "men who have sex with men".<br />
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And this exposes yet another conceptual error in the strategy. It ought to be clear to even the least informed HIV-AIDS policy decision maker and advisers that not all men who have sex with men are homosexuals. Nor is there any inclusion of bisexuality. Programs must at least be able to identify the MARG's which this policy document does not do. It is the MARG profile that dictates the policy response. So, it is necessary to consider programmatical objectives in relation to men who have sex with men but who are not homosexual, men who have sex with men who are homosexual and men who have sex with both men and women (as well as sex workers and their clients, intravenous drug users, people who have received blood transfusions of blood products before testing of blood supplies was introduced, to name but a few).<br />
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These conceptual failures have meant a misformulation of policy and the deployment of defective programs to combat HIV-AIDS in East Timor; such as the <a href="http://easttimorlegal.blogspot.com/2009/09/timor-leste-red-cross-exludes.html">Timor-Leste Red Cross HIV-AIDS Reduction Program</a> which reinforces the separation and marginalisation of the gay community from the straight community. It does this by excluding the gay community as a MARG from its program (the principle, most active international NGO in this area).<br />
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That has been hived away from the Red Cross program and programming for men who have sex with men (but not homosexuals) has been assigned to a small, inexperienced, under-resourced national NGO which would be even less enthusiastic about combating HIV-AIDS by combating homophobia as a central programming theme.<br />
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How can it reasonably be expected that the critical issue of homophobia will be properly addressed under the East Timor National HIV-AIDS strategy as it is presently cast? There would be much more chance of success if an international agency were to put homophobia as part of its HIV-AIDS reduction program and that this be undertaken with the entire community as the target.<br />
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Policies based on moral or religious dictates are of no avail in the minimisation of HIV transmission and this is because a moral or religious doctrine can not prevent infection.<br />
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Socialisation and the open availability of condoms*, national public information campaigns about safe sex, treatments, and civil rights guarantees are known to minimise infection. Policies based on science, legal rights and guarantees - as well as common sense - turn out to be the best ones; able to turn the peak of new infections into a plateau and eventually into a downward trend. Policies that seek to advance a moral or religious framework for the suppression of HIV ought to be discarded since they do not prevent HIV transmission.<br />
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Consequently, the rights of persons diagnosed as HIV-positive must also be a pillar of any national HIV strategy. Discrimination in the provision of health care services for people living with HIV contributes to a hastened demise of those people and is a strong disincentive for people to be tested leaving the entire community at greater risk. Guarantees of confidentiality of HIV status must be set in law; as do anti-discrimination laws and laws prohibiting criminal vilification of homosexuals, homosexuality or HIV-status.<br />
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East Timor is a long way from that. But the longer and further away from that kind of policy reform East Timor is, the more of its citizens will suffer and die terrible deaths - and the further HIV will spread into the general community.<br />
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First published on the <a href="http://easttimorlegal.blogspot.com.au/2009/09/hiv-aids-and-homophobia-in-timor-leste.html">East Timor Law and Justice Bulletin</a> on 27 September 2009<br />
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Additional Resource:<a href="http://easttimorlawjournal.blogspot.com.au/2012/06/homosexuality-in-east-timor.html"> Homosexuality in East Timor</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-87249039010005304722012-06-15T03:51:00.000-07:002014-06-24T04:16:23.808-07:00Lawyers condemn pardoning of criminals in East Timor as an erosion ofdemocracy and the rule of lawCitation: ETLJ 2010 3 Lawyers condemn pardoning of criminals in East Timor as an erosion of democracy and the rule of law<br />
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A peak civil society law and justice organisation in East Timor, the Judicial System Monitoring Program, has condemned the pardoning of criminals who committed serious crimes during the 2006 crisis and the attacks on the Prime Minister and President on 11 February 2008.<br />
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Amongst the 26 convicts that were pardoned, 3 were found guilty by the Courts and sentenced to long prison terms for the shooting murders of 8 police officers in front of the Ministry of Justice by military personnel on 25 May 2006 . The other 23 were found guilty for their involvement in the attack and attempted murder of the President and Prime Minister during which the President himself almost died.<br />
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In a press release on 31 August 2010, JSMP stated that the practice of granting pardons by the President in East Timor has created a great deal of confusion.<br />
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“So far the President has been given room to exercise his competency in an excessive manner (outside of what is reasonable), in contradiction with ordinary practices, in a discriminative manner with a tendency to misuse the constitutional prerogative that he has been granted.”<br />
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“We all understand that the justice system in Timor-Leste still remains extremely vulnerable and is undergoing a process of reconstruction.<br />
<br />
Therefore JSMP is concerned that if one of the components of the state or one of the sovereign organs does not take a sensible and careful approach to the exercise of prerogative rights then this can seriously threaten the importance of and commitment to establishing a legal system that is credible, authoritative and independent.<br />
<br />
Irresponsible political decisions like this will destroy the functioning and credibility of the legal system itself,” the statement continued.<br />
<br />
JSMP outlined its objections to the way the pardons were granted by President Ramos-Horta as being that:<br />
<br />
1. The pardons were granted to all convicted persons on an equal basis, although they were involved in crimes of a different nature.<br />
<br />
The pardoning process was not based on individual assessment of the circumstances of each convicted person, which is the normal practice. The use of authority outside of the normal process can lead to the discriminatory use of presidential authority in the granting of pardons because other convicted persons who have served their prison sentences have not received a pardon or had their sentence commuted.<br />
<br />
2. The decision of the president to grant pardons to the 26 convicted persons indicates that the decision issued by the court was not appropriate or even erroneous.<br />
<br />
This is indicative of an ‘extraordinary’ practice, because ideally pardons are only granted in exceptional circumstances, and there shouldn’t be a practice to grant pardons every time there is an important day on the calendar.<br />
<br />
3. Pardons should only be granted in situations where specific consideration has been given to an individual case or a convicted person. Cases and convicted persons should not be grouped together and assessed collectively, which has occurred in this instance.<br />
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4. The 26 convicted persons who were granted pardons had been given different sentences (their prison sentences ranged from 5 to 11 years). These sentences reflect the fact that each convicted person was found guilty of crimes carrying various degrees of gravity and subsequent penalties. Decisions issued by the courts are always based on the facts revealed through a trial process that is thorough and credible.<br />
<br />
Therefore the President must present reasons why the court’s decision was deemed inappropriate or why the full sentence, or at least half of the sentence, should not be served.<br />
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5. Every paragraph in the Presidential Decree on Pardons provided the following grounds: “good behavior and for humanitarian reasons”. This indicates that there was no separate assessment of each convicted person during his period of imprisonment. These sorts of practices will end up destroying normal procedures, minimizing the authority of the courts and rendering court decisions meaningless.<br />
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6. JSMP believes that the President should only be able to reduce the sentence of a convicted person in accordance with the length of his sentence, which is a reflection of his culpability for the actions that he has committed, and President should not be able to release a convicted person from his sentence in its entirety.<br />
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7. Article 65 (2) of the Timor-Leste Penal Code allows for a prison sentence to be commuted to ‘conditional release’ if the convicted person has displayed good behavior and has served half of his sentence.<br />
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8. The aforementioned granting of pardons relates to very serious crimes, even though they are not categorized as crimes on an international level, but they still fall into the category of very serious crimes and have extremely serious implications on the criminal justice system and the community.<br />
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9. This decision also reflects a policy that does not value and respect the supreme efforts of the judicial institution and does not encourage the public to have faith in the judicial system.<br />
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In addition to the reasons outlined above, JSMP believes that although the President has exercised his competence pursuant to Article 85 (1) of the Constitution, this article should be read together with other articles that deal with the Principle of Universality (equality before the law), the principle of the independence of judicial institutions and a number of other principles. JSMP is particularly concerned and truly regrets the actions of the President who has often mentioned that his decision or policy to grant pardons is a reflection of his personal conviction and his own philosophy as a human being.<br />
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JSMP believes that the conviction and personal philosophy of a president are not recognized as a law that must be observed and implemented by the government to regulate matters concerning the granting of pardons.<br />
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In reality, this type of practice does not give much hope that in the future there will be a legal system that will provide equal protection for all people; on the contrary this will specifically destroy the framework of the nascent criminal justice system.<br />
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<b>Additional Resources on Amnesties and Pardons in East Timor</b><br />
<a href="http://easttimorlegal.blogspot.com/2010/08/ramos-horta-pardons-attackers.html">Ramos-Horta Pardons Attackers</a><br />
<a href="http://easttimorlegal.blogspot.com/2010/06/ai-timor-leste-law-allows-amnesties-for.html">AI : Timor-Leste law allows amnesties for war criminals</a><br />
<a href="http://easttimorlegal.blogspot.com/2010/05/president-horta-grants-pardons-to.html">President Horta grants pardons to prisoners who engage in crime in 2006 crisis</a><br />
<a href="http://easttimorlegal.blogspot.com/2010/04/prosecutor-pessoa-its-time-to-have-law.html">Prosecutor Pessoa: It’s time to have a law on granting pardons</a><br />
<br />
First published on the East Timor Law and Justice Bulletin on 10 September 2010<br />
<br />Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-39447548832546046402012-06-15T02:53:00.000-07:002013-06-09T12:42:05.814-07:00The East Timor Land Law Program: Four Years On - Still No Land LawCitation: 2010 ETLJ 2 The East Timor Land Law Program: Four Years On - Still No Land Law<br />
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The USAID Land Law Program in East Timor produced draft legislation 4 years ago this month and there is still no land law in East Timor.<br />
There has now been more than a decade for reforms to be made to the land law in East Timor but successive governments have failed to come to terms with the most complex of social problems in this country: land law and policy concerning the indigenous and colonial land rights systems that have operated in this jurisdiction over the last 4 centuries of its recorded history and the violent and unsettled land disputes that are largely the result of the colonial occupations.<br /><br />This social problem - which ultimately stems from uncertainty surrounding land ownership and the lack of a just dispute resolution mechanism to deal with the multitude of land conflicts - is not just a matter of the technicalities of legislative drafting but revolves around more complicated social, political and economic exigencies. They have proven to be too difficult to confront.<br /><br />This uncertainty erodes the integrity of the civil peace and economic development and the longer the government sticks its head in the sand about land problems, the more serious and destabilising these problems will become.<br /><br />The following is a report from the East Timor Legal Information Site legal news archive from June 2006 about the East Timor Land Law Program which to date has failed to provide any properly informed framework for the articulation of the requisite policies and laws - notwithstanding considerable donor aid and the mobilisation of numerous international experts.<br />-----<br /><br />02 JUNE 2006 USAID Land Law Program II East Timor: Final Report Published - The final report on the USAID-funded East Timor Land Law Program has been published. The Land Law Program, implemented was undertaken by the the Ministry of Justice through the National Directorate of Land and Property.<br /><br />"On the legislative drafting front, LLP II worked with government and prepared the main land bill entitled Juridical Regime of Immovable Property - Part III: Property and Transfer Systems, Land Registration, Pre-Existing Rights and Title Restitution. This bill addresses the themes related to the new immovable property and land registration systems to be implemented in the future, the provisions for the resolution of land claims and title restitution of pre-existing freehold rights and the compliance with the Constitution by non-national claimants of land rights. Numerous work sessions with high-level government officials and a special committee designated for the review of the bill took place. Advocacy for the passage of the law was carried out to the fullest extent possible. The submission of the bill to the Council of Ministers is pending.<br /><br />The law drafted previously by LLP II on Leasing between Private Parties was passed by Parliament. A draft decree-law for the regulation of illegal constructions and informal settlements was prepared and delivered to the Ministry of Justice. The first debate of the bill at the Council of Ministers took place in December 2005.<br /><br />A bill on Land Taxation and Expropriation was also delivered to government in mid-March 2006 for the future debate of these matters and to be considered only after the main land bill is passed and the land registration system is fully functional. In addition, the DNTP Organic Law was drafted and accepted by the Ministry of Justice for consideration along with ministerial decrees on lease tender processes, contract preparation, and delegation of responsibilities by the Minister of Justice to DNTP." First published on the <a href="http://easttimorlegal.blogspot.com.au/2010/06/east-timor-land-law-program-four-years.html">East Timor Law and Justice Bulletin</a> on 23 June 2010<br />
Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-58000432890909197832012-06-15T02:13:00.000-07:002013-06-09T12:43:57.556-07:00What happens when abortion is illegal - The Case of East Timor<b>Citation 2009 ETLJ 15 What happens when abortion is illegal - The Case of East Timor</b><br />
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There has been a dramatic debate in East Timor over recent weeks about the provisions of the new draft penal code pertaining to abortion. The draft article 144 of the penal code deals with “interruption of pregnancy”. Draft article 142 deals with “non-punishable interruption of pregnancy”. By the proposed article 144, abortion is crime and those who perform abortion will be punished with imprisonment terms ranging from 2 and 8 years.<br />
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The draft article 144 then introduced an “exception” for cases where the mother's life is in danger, or when the mother is underage (younger than 16).<br />
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East Timorese civil society organisations along with the Ombudsman for Human Rights and Justice lobbied for the additional inclusion of cases of incest (where the father has sexual relations with his own daughter) and rape.<br />
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The voice of the Roman Catholic Church in East Timor, controversial priest Martinho Gusmao, condemned the proposed exceptions and attacked those advocating for the rape and incest exceptions.<br />
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The Council of Ministers acquiesced and did not include the exemptions. Accordingly, when the new penal code comes into force, it will be illegal to perform abortions even where the pregnancy results from incest or rape.<br />
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Policy and laws that impose unreasonable prohibitions on abortions - particularly where pregnancy results from rape or incest - lead to the infliction of a greater harm to the woman. Abortion prohibitions cause illegal abortions to be performed from which both the foetus and the woman often die - a result that is of far greater concern than the destruction of an embryo in the early stages of a pregnancy that is the result of incest or rape.<br />
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It is not a long search to find both incest and the death of women through incompetent abortion agents in recent East Timorese history. In November 2008, the Judicial System Monitoring Program reported on a case in the Oecusse District Court that arose from the death of a woman who was administered a traditional abortifacient.<br />
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The prosecutor's indictment in that case stated that in March 2007 in Betasi, Taiboko the first defendant entrusted some traditional medicine to the second defendant to be given to the victim J and to be taken in accordance with instructions set out by the first defendant. The aim of the two defendants was to enable the victim to abort her four month old fetus. The defendants instructed the victim to take the medicine regularly for three weeks. After several days the victim aborted the foetus and died.<br />
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Incest is a significant social problem in East Timor. A recent conference was informed that incest occurred frequently in remote areas. Often parents and children slept in the same room, leaving little privacy and sometimes leading to sexual abuse and unwanted pregnancy. In February 2009, Charles Darwin University researcher Suzanne Belton conducted a study on unwanted pregnancy in Timor-Leste. She concluded that the law was highly restrictive and that illegal abortions were common.<br />
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Women in East Timor who experience rape or incest will have no option but to endure the additional burden of an unwanted pregnancy and one which, in the case of incest, carries a significant risk of genetic defects. Whether the new law will be effective in dealing with traditional abortions in rural areas where women's access to modern medical care is extremely limited will remain to be seen.<br />
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Public health laws should have their foundation in science and reason and not on religious dogmas; especially where laws informed by religion cause a social harm to emerge.<br />
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First published on the <a href="http://easttimorlegal.blogspot.com.au/2009/04/what-happens-when-abortion-is-illegal.html">East Timor Law and Justice Bulletin</a> on 05 April 2009<br />
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Related article: <a href="http://easttimorlawjournal.blogspot.com.au/2012/05/morality-religion-and-law-abortion-and.html">Morality, Religion & the Law: Abortion & Prosititution in East Timor</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-51081571160559681662012-06-09T12:47:00.000-07:002013-05-18T15:02:14.530-07:00The 2006 Crisis - A Brief Overview<p>The origins of the 2006 political crisis in East Timor....to be continued</p>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-78024375265881930502012-05-27T02:59:00.000-07:002013-06-09T12:45:56.686-07:00Community land in East Timor - A New Tragedy of the Commons?2010 ETLJ 1 Community land in East Timor - A New Tragedy of the Commons?<br />
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The East Timor Law and Justice Bulletin has previously published analyses pointing out certain fundamental deficiencies in the <a href="http://easttimorlegal.blogspot.com/2009/06/east-timor-draft-land-law-june-2009.html">draft land law</a>’s provisions pertaining to indigenous land tenure systems in East Timor. To reiterate briefly, the draft would confer no juridical status on either customary land tenure systems or the individualised traditional rights that have emerged from those systems; it confers no juridical status on the customary managers of the land and makes no provision for just compensation for the diminution or extinction of customary land rights. Furthermore, the draft land law would impose a mere obligation on the government "to consult" with local communities when it is making decisions about the use or alienation of the land in their territory. The protection of community lands is left entirely in the hands of the executive.<br />
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As East Timor witnessed when it was part of Indonesia, customary peoples and their lands were the subject of exploitation, dispossession and destruction under a legal regime that paid no respect to the indigenous land systems. Similarly, in Australia, during the colonisation process, aboriginal lands were systematically appropriated without compensation and granted to the invading Europeans; leaving hundreds of indigenous communities in oblivion. In fact, the aboriginal people were the subject of a land-induced genocide of the most horrifying dimensions; leaving “a legacy of unutterable national shame”, as the High Court of Australia stated in the history-shattering case of Mabo v The State of Queensland (No 2) that overturned centuries of legal lies and restored the rightful juridical status of indigenous lands in that country. It is to such extremes that failures on land law and policy inexorably lead - to epic suffering, grief and loss; something of which the people of East Timor have had far more than their fair share.<br />
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One of the constitutive causes of the law has, at least in Western jurisprudence, been to define and protect property rights since they are essential to individual liberty, economic and political autonomy as well as social development. Land rights are a most quintessential vector in the entrenchment and maintenance of the relationships of power and organisation in all human communities.<br />
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When the law fails in this core function, it has failed the most central tenets of democracy and capitalism and injustices and conflicts arise which have the potential to destabilise the civil peace. East Timor policy-makers, administrators and researchers know all too well of the potentiality for violence, chaos and disorder when land issues are not properly managed.<br />
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Regrettably, the stage has already been set in East Timor for further problems that are rooted in the complexities of land law and policy; and in particular those relating to indigenous land tenure systems confronting intrusions from both domestic and foreign capital as well as the state.<br />
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In a recent article (Justice for the Poor Briefing Note November 2009 Volume 3 Issue 3 entitled Contracts, Land Tenure and Rural Development in Timor-Leste) Rod Nixon refers to some examples of the granting of rights and concessions over community lands in East Timor which have already taken place even though the draft land law is yet to be enacted and even while there is no other substantive legal regulation of community lands in that country.<br />
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Nixon recites 2005 survey data that shows that about 3% of rural land in Timor-Leste appears to have been alienated from customary tenure. Since then, of course, there have been several significant interventions by the state granting rights over community lands to private capital.<br />
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Nixon notes that other cases include the 12 hectare East Petroleum site in Liquica and the 2008 Memorandum of Understanding between the GoTL (Government of East Timor) and GTLeste Biotech concerning a renewable 50 year lease for 100,000 hectares 'of unproductive land'. Another case is a lease issued by the GoTL to Timor Global in 2005 for 3000 hectares of coffee plantation at Fatubesi (Ermera district).<br />
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Nixon’s observations on this latter case are that “[a]lthough formally state land, Timor Global discovered that the lease provided an insufficient basis for the company to commence crop improvement and management activities. Before the company could begin work, it had to negotiate with community leaders and agree to provide benefits including employment opportunities and security arrangements. Timor Global has now commenced work on a 60 hectare section and employs around 80 members of the local community (including 30 said to have connections to the resistance movement)."<br />
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Timor Global is also active in Baucau district where the company has leased 1,500 hectares of community land and is introducing intensive cultivation methods on sites in three villages totalling up to 100 hectares.<br />
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Nixon tells us that "benefits including employment opportunities and security arrangements" were negotiated in one case - which would be an extraordinary form of compensation not known to the land law since the international standard is current market value for the interest in the land that is diminished or extinguished by a resumption and it seems that no other compensation was offered. Past experience informs us that when a customary community is dealing with private capital which has the power and, if necessary, the force of the state standing behind it, and there are no clearly defined legal entitlements, rights and benefits for the appropriation of property rights, one thing is certain: that the negotiation process is not adequate nor is the compensation just.<br />
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There have been other cases of problems being caused by an inappropriate approach to customary land tenure systems in East Timor. And one which highlights the dangers of conflict and violence threatening to break out from the mismanagement of the problem is the resumption of community lands for the Metinaro base of the East Timor Defence Forces. This appropriation occurred during the UNTAET period and was personally witnessed by the present writer. When the land was being surveyed by cadastral offices of the National Directorate of Land and Property (DNTP), local men appeared armed with weapons. The Defence Force itself had to provide security and oversee the process. Armed military personnel attended the handover of compensation which was some rice. Some rice for the land that this community had occupied since time immemorial. The suppression of resistance to the unjust taking of community lands works for a while but social discontent simmers away because of the injustice thereby rendered.<br />
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It is worth noting Nixon’s comment that “[w]hereas the GoTL, with USAID support, is addressing the critical area of property rights in urban and peri-urban areas through the Ita Nia Rai program, this initiative will not cover the vast amount of the country over which customary systems of authority predominate.”<br />
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Ultimately, this is a misrepresentation on both counts that needs to be corrected.<br />
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Firstly, given the criticisms of the draft land law that has been produced under the Ita Nia Rai program - and not just those in relation to the provisions on community land but the broader questions of whether possession or restitution is the ultimate goal of the draft as well as the<a href="http://easttimorlegal.blogspot.com/2009/07/rede-ba-rai-press-release-only-brief.html"> appalling lack of adequate or meaningful public consultations</a> on the draft, the question remains whether this draft is really going to “address the critical area of property rights” or whether it is something more insidious than it appears.<br />
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Secondly, it is wrong to state that the land law program “will not cover the vast amount of the country over which customary systems of authority predominate” because the draft land law clearly would impact on and would directly regulate (or purport to regulate) community land. It does this in the manner described at the beginning of this analysis and in the articles recited below, by ignoring the substantive legal and policy issues and subjecting community land to the pure will of the executive; without recourse to judicial review of government decisions that affect those lands. The draft authorises – poorly and improperly - the government to make decisions on the use and occupation of community lands (Article 26(2)), and in that decision-making process, the government needs only to consult with the community. No mention of the legal status of those rights. No mention of compensation.<br />
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Nixon appears to endorse this position by reciting other authorities that suggest “that state-managed negotiation frameworks for accessing land for development can play a role in both facilitating economic development and reducing the risk of land conflict.” But such a state-dominated system only works in a democratic rather than an autocratic way and without consequential disputes and conflicts if the extant legal rights of the local communities over their lands are already enshrined in the law and there is a separation-of-powers inspired judicial review regime simultaneously in place. In East Timor, this is not yet the case. And it seems unlikely that it is intended to be the case.<br />
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Nixon’s obscurantism and obfuscations should not go unnoticed by those interested in the development of a rational, informed and experiential policy and legal regulatory framework for community land in East Timor. It is unfortunate that such an important debate is articulated in such a superficial way.<br />
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Warren L. Wright BA LLB<br />
(former UNTAET Property Rights Adviser)<br />
<br />
First published on the <a href="http://easttimorlegal.blogspot.com.au/">East Timor Law and Justice Bulletin</a> on 21 February 2010<br />
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See also:<br />
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<a href="http://easttimorlegal.blogspot.com/2009/08/negative-impact-of-draft-land-law-on.html">Negative Impact of Draft Land Law on Customary Land Tenure Systems in East Timor</a> on the <a href="http://easttimorlegal.blogspot.com.au/">East Timor Law and Justice Bulletin</a><br />
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<a href="http://easttimorlawjournal.blogspot.com.au/2012/05/communal-land-tenure-systems-in-east.html">2009 ETLJ 13 Communal Land Tenure Systems in East Timor to have no legal status under new draft land law</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-544612309796593102012-05-27T01:06:00.000-07:002013-06-09T12:46:51.180-07:00Draft land law provisions on land rights for foreigners in East Timorwill smother development<b><a href="http://www.scribd.com/doc/16767881/East-Timor-Draft-Land-Law-June-2009">Draft land law</a> provisions on land rights for foreigners in East Timor will smother development</b><br />
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In a press release dated 20 July 2009, the Revolutionary Front for an Independent East Timor stated that '[t]he Gusmao–led AMP government’s consultation process on the draft land law is woefully inadequate and the law itself would open the door to foreign ownership and control of land.<br />
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Fretilin further stated that '[a]ccording to the draft, a company wishing to own land in Timor-Leste only needs to have its head office in Timor-Leste, meaning foreigners could set up companies here and through their majority controlling shareholdings purchase large swathes of land at vastly discounted values.<br />
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'The major productive asset of most families, land, would potentially be ripe for exploitation by international speculators as nearly all East Timorese have little experience in land valuation, and being desperate for cash, would be vulnerable to unfair deals. This would lead to the displacement of many people and exacerbate social tensions and inequality.'<br />
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The press release continued to account a recent history of foreign land grants in East Timor and said that the draft law demonstrates the AMP government’s willingness to put the interests of powerful interest groups ahead of vulnerable East Timorese citizens.<br />
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According to Fretilin, last year, 'the current Minister for Agriculture Mariano Sabino agreed to hand over 100,000 hectares of scarce agricultural land to an Indonesian company for use as a sugar-cane plantation.<br />
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This deal was followed by the Secretary of State for Energy Policy Avelinho Coelho signing a contract with the Australian-based biofuel company Enviroenergy Developments Australia for Jatropha development on 59 hectares of prime agricultural land at Baucau.<br />
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Both deals were signed at a time of sky rocketing food prices and despite clear evidence that the projects were highly polluting and severely damaged Timor-Leste’s capacity to become self sufficient in food production.'<br />
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But a closer examination of the draft land law poses some more fundamental issues.<br />
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The following provision is in the East Timor Draft Land Law 2009:<br />
<br />
Article 11 (Foreigners)<br />
1. Properties whose previous right holder is a foreign claimants revert to the State, unless there is special adverse possession.<br />
2. The State shall grant usufruct to foreign holders of previous rights who maintain the current possession of a property that has reverted to the State's private domain.<br />
3. The usufruct referred to in the above number is automatically re-granted in favor of the heirs and legatees of the usufruct holder (upon the death of the grantee).<br />
<br />
Firstly, the Constitution of the Democratic Republic of East Timor restricts the right of ownership of land in East Timor to citizens (presumably, this included national bodies corporate, but it may not).<br />
<br />
But this so-called constitutional prohibition on land ownership in East Timor does not mean that foreigners can not gain any land rights. There is a similar provision in the Indonesian constitution. Such a provision is usually interpreted to mean that foreigners may not hold the fullest rights in land that exist in the jurisdiction that prohibits such ownership. Lesser rights such as lease - or, in the case of Indonesia - the right of use (hak pakai) - are created and granted for the purposes of foreign investment.<br />
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As the elucidation of Articles 41 and 42 the Indonesian Basic Agrarian Law of 1960 (which is presently part of the applicable land law in East Timor),<br />
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Hak pakai (right of use) is the 'collective definition' of the rights which are known in land law by different names, all of which --with slight differences due to differences in circumstances amongst regions-- provide the holder with powers as meant in this article. In the context of simplification as described in the General Elucidation, the new agrarian law uses the same term (i.e. hak pakai) to refer to these rights.<br />
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Foreign embassies can be granted with a hak pakai because this right can be valid for as long as the land is used for that purpose.<br />
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Foreign individuals and foreign corporate bodies can be granted with a hak pakai because this right only provides limited powers.<br />
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Prohibiting access to land by foreign entities or entrenching such a juridically limited and restricted right to land for foreigners such that it provides no security of tenure for a sound and sufficiently empowering land right that is necessary to induce capital investment is not a policy that exists in legal systems whose economy is based on the principles of capitalism and democracy. Land - and secure rights on land - are indispensable preconditions for foreign investment. Foreign investment - in the absence of an economy that is capable of existing without it - is crucial for poverty alleviation and eradication goals as well as general economic and social development.<br />
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To argue that foreigners should have no access to land in a developing country's legal and economic system or that they should only be entitled to a right that is not compatible with or sufficient for investment is to argue that country into perpetual poverty, political instability (unless the state is strengthened to suppress dissent) and international isolation.<br />
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The draft land law does this by actually inhibiting foreign access to land by restricting the right which a foreign entity may hold to a mere usufructuary right - one of the most primitive forms of land right - and one that is totally useless for international capital because it will not be transferrable (if it is, it will probably require state consent.) Certainly the draft implies that it may only devolve to successors to the original grantee. Most importantly, however, it can not be used as collateral for loans from financial institutions. Such a situation will smother foreign investment and contribute to the exacerbation of East Timor's many social and economic woes.<br />
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It is extraordinary that such a critical matter should be regulated in the way proposed by the draft land law and that only a short provision exists in a land law that is supposed to be directed to more fundamental determination of land ownership issues and the resolution of disputes over land in East Timor.<br />
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It is even more extraordinary, considering the very long gestation period for this draft land law and the considerable resources that have been expended in its production, that any policy maker or legislative drafter could conceive of such an inadequate and, in the end, detrimental, regulation of the critical issue of foreign land ownership in East Timor.<br />
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First published on the <a href="http://easttimorlegal.blogspot.com.au/2009/07/draft-land-law-provisions-on-land.html">East Timor Law and Justice Bulletin</a> on 21 July 2009 Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-85966989336767889662012-05-27T00:31:00.000-07:002013-06-09T12:48:03.937-07:00Communal Land Tenure Systems in East Timor to have no legal statusunder new draft land lawCommunal Land Tenure Systems in East Timor to have no legal status under new <a href="http://www.scribd.com/doc/16767881/East-Timor-Draft-Land-Law-June-2009">draft land law</a><br />
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The question of security of tenure for customary land tenure systems has been a crucial issue facing traditional communities throughout the world as they confront the forces of modernisation and global capital.<br />
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In many places - both in the developing world and in the history of the great western democracies - indigenous peoples' land has been seized by colonisers or confiscated by the modern State for natural resource exploitation and political and economic domination. Entire communities and their unique cultures have been annihilated in these processes and indigenous people have been powerless to challenge the intrusions and appropriation of their customary lands because their land tenure systems were not conferred with juridical status by the legal system. This left traditional communities vulnerable to extinction - along with their ancient land management and ownership customs and law.<br />
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In East Timor, traditional communities are about to face the full force of the state's assertion of control and ownership of customary land in East Timor. This was instituted by the 2002 Constitution which mandates the fundamental right of the state in relation to the land and resources in East Timor:<br />
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Article 139<br />
(Natural resources)<br />
<br />
1. The resources of the soil, the subsoil, the territorial waters, the continental shelf and the exclusive economic zone, which are essential to the economy, shall be owned by the State and shall be used in a fair and equitable manner in accordance with national interests.<br />
2. The conditions for the exploitation of the natural resources referred to in item 1 above should lend themselves to the establishment of mandatory financial reserves, in accordance with the law.<br />
3. The exploitation of the natural resources shall preserve the ecological balance and prevent destruction of ecosystems.<br />
<br />
While this provision pays due regard to the environmental dimensions of natural resource management, it is silent on the cultural aspects which have existed since time immemorial over much of the land in East Timor.<br />
<br />
This is so even though the Constitution also requires the state to respect the customs of the country by Article 2 (4) which provides that: The State shall recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing specifically with customary law.<br />
<br />
It has been argued that this provision means that customary land tenure systems must be recognized by the state. But that is not the plain and ordinary meaning of the words of this provision which subject this state obligation to the proviso that the relevant norms and customs are not contrary to the Constitution. As noted above, the Constitution empowers the state to deal with natural resources in the “soil, the subsoil, the territorial waters, the continental shelf and the exclusive economic zone” of the country. This includes resources located within the territories of customary land tenure systems. In this way, the Constitution is the basis for the lack of juridical recognition of these land tenure systems that are based on the customs and norms of East Timor.<br />
<br />
The new draft land law does not deviate from this policy in so far as it relates to what it defines as community land: “land in areas where a local community organizes the use of the land and other natural resources by means of norms of a social and cultural nature.”<br />
<br />
Clearly, the constitutional state control of natural resources by Article 139 is inconsistent with if not contrary to the customary communal control of resources which must therefore fall in the face of the Article 139 leaving no basis for the assertion of the legal status of customary land tenure systems in East Timor.<br />
<br />
The relevant provisions in the draft land law that touch on communal land tenure systems in East Timor are set out below.<br />
<br />
CHAPTER V<br />
COMMUNITY LAND<br />
<br />
Article 23<br />
(Definition)<br />
1. Community land is considered to be land in areas where a local community organizes the use of the land and other natural resources by means of norms of a social and cultural nature.<br />
2. The National Property Cadastre shall identify areas that are considered as<br />
community land.<br />
<br />
Article 24<br />
(Local community)<br />
Local community means a grouping of families and individuals living within a territory at the level of a village or smaller, which aims at safeguarding common interests through the protection of housing areas, agricultural areas, whether under cultivation or not, forests, sites of cultural importance, pasture land, sources of water and areas where there are natural resources, the use of which is shared.<br />
<br />
Article 25<br />
(Customary norms and practices)<br />
1. On community land, local communities participate in:<br />
a) The management of natural resources;<br />
b) The resolution of conflicts relating to the use of natural resources;<br />
c) The identification and definition of the boundaries of the lands they occupy.<br />
2. In the exercise of the activities referred to in items a) and b) of No. 1 of the present article, the local communities utilize customary norms and practices.<br />
<br />
Article 26<br />
(Protection)<br />
1. The State shall protect community land, preventing undue appropriations, the indiscriminate and unsustainable use of natural resources and real estate speculation.<br />
2. The Government shall consult with the local community before authorizing third parties to use land in the community land areas.<br />
<br />
The critical provision is proposed Article 26(2). The government’s constitutional authority and control is the basis of this provision which only requires it to consult with local communities over the exploitation of natural resources within customary land tenure territories. There is no obligation to pay compensation for the loss or despoliation of customary land. No juridical status is conferred on the local traditional authority structures or on the traditional land tenure systems.<br />
<br />
This exposes traditional communities to the same type of treatment they received during the Soeharto dictatorship – violence and dispossession without just compensation. When the East Timor Defence Force base was being constructed at Metinaro, land belonging to the local community was resumed. This resumption did in substance if not procedurally comply with the applicable Indonesian law on the compulsory acquisition of land in that the only compensation paid was some bags of rice.<br />
<br />
When cadastral officers of the then UNTAET/ETTA Department of Justice Land and Property Unit went to survey the land, local residents presented with machetes.<br />
<br />
Consistent with the methods deployed during the illegal occupation by the Indonesian state, armed soldiers of the East Timor military and the police accompanied every development in this acquisition of traditionally-held lands on the outskirts of the capital.<br />
<br />
This set the precedent for how community land was to be dealt with by the East Timorese state and this policy is continued and entrenched in the new draft land law.<br />
<br />
Grievances caused by the unjust acquisition of land and property by the state do not go away even when the threat of deadly force is deployed by the state to suppress the conflict thereby generated. In fact, those grievances simmer on for many years - and down through generations. The government of East Timor and its policy advisers know this well. The most notorious land conflict in East Timor - the Watu Lari case - has caused the outbreak of violence and killings several times over the decades it has been developing with no resolution from the state.<br />
<br />
In fact, such conflicts pose a grave danger for social stability, the civil peace and harmony between the community and the government as well as for the human rights of traditional communities.<br />
<br />
More serious attention needs to be focused on the issue of customary land tenure systems in East Timor as the country tries to settle its many complex and long-standing land conflicts.<br />
<br />
Warren L. Wright BA LLB<br />
<br />
Former Property Rights Adviser to the United Nations Transitional Administration in East Timor (2000-2002) and International Land Law Adviser on the Indonesian Land Administration Project (1994-1996/1999)<br />
<br />
First published on the East Timor Law and Justice Bulletin on 12 July 2009<br />
<br />
Related Articles<br />
<br />
<a href="http://easttimorlawjournal.blogspot.com.au/2012/05/translation-of-report-on-research-into.html">2004 ETLJ 7 Report on Research into Adat Land Law in East Timor</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-89622046566664180472012-05-26T23:24:00.000-07:002013-06-09T12:48:41.245-07:00Political interference in judicial processes in East Timor<b>2009 ETLJ 12 Political interference in judicial processes in East Timor</b><br />
<br />
It was reported in the East Timor newspaper Timor Post on 3 February 2009 that President Jose Ramos Horta had held a meeting with with former rebel leader, Gastao Salsinha, and other followers of slain rebel leader Alfredo Reinado Alves, including Marcelo Caetano who, according the the President's brother last year, was named by President Horta as his would-be assassin on 11 February 2008. On 4 February, Timor Post further reported that the President had called for the fomer rebels to reveal the identity of the man who shot him on that date.<br />
<br />
In the common law world, such interventions by the Head of State in the judicial process constitute a grave violation of the doctrine of the separation of state powers and the independence of the judicial process from political interference. Such interventions erode the rule of law and strike at the very heart of democracy.<br />
<br />
As common law jurists know, the victory of the English common law began with the abolition of torture in England long before other countries and paved the way for the fairer treatment of political enemies of government when brought to trial. Above all, the victory of the common law over the Prerogative Courts preserved the medieval conception of the supremacy of law as a thing that could not be brushed aside for the convenience of government and could only be altered in full Parliament, not by the King alone.<br />
<br />
This great principle, that law is above the executive, was violated in England during the revolutionary period of the Commonwealth and Protectorate. But it re-emerged at the Restoration and was confirmed in the revolution of 1688 which was effected against James II precisely to establish the principle that the law was above the King.<br />
<br />
That English medieval idea of the supremacy of law as something separate from and independent of the will of the executive, disappeared in continental countries where the civil law system developed. But in England, it became the palladium of the common law liberties and had a profound effect on English society and habits of thought. These ideas are the foundation of the great democracies of the contemporary world.<br />
<br />
What hope then, does East Timor, which implements what is essentially a civil law system based on the contintental European colonial law codes, have for the triumph of the rule of just law over the caprices of the political organs of the post-independence state while there are unquestioned phenomena such as the blatant manipulation of the judicial process that is demonstrated in the media reports of President Horta's entirely inappropriate interventions in the 11 February cases?<br />
<br />
In so far as the United Nations mission in East Timor (UNMISET) remains silent on these matters, it becomes complicit in the destruction of the constitutional principles of the rule of law and the separation of powers and will no doubt stand impotently by wringing its hands when the next collapse of the legal order in East Timor brings calamitous sufferings to the people.<br />
<br />
Donors should be wary of contributing vast funds through UNDP to the so-called development of the fundamentally dysfunctional judicial system in East Timor that is doomed to certain relapses of the disintegration of the rule of law if the problematic behaviors of the executive in relation to the judicial system continue and respect for basic legal principles is not pursued.<br />
<br />
One part of the solution to this problem is the strengthening and empowerment of civil society. Civil society programs that are focused on the judicial system should be prioritised by the funding agencies. Particularly, credible and established East Timorese organisations such as the Judicial System Monitoring Program (JSMP), the Rights Association (HAK) and the East Timor Lawyers Association should be strongly supported by the donors.<br />
<br />
Warren L. Wright BA LLB<br />
<br />
First published on the East Timor Law and Justice Bulletin on 5 February 2009 at <a href="http://easttimorlegal.blogspot.com/2009/02/political-interference-in-judicial.html">http://easttimorlegal.blogspot.com/2009/02/political-interference-in-judicial.html</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-31290182921931528812012-05-25T15:59:00.000-07:002014-06-23T23:47:35.962-07:00East Timor Land Rights: Restitution Not Possession - A Comment on theDraft Land Law<b>Original Citation: 2009 ETLJ 10 East Timor Land Rights: Restitution Not Possession - A Comment on the <a href="http://www.scribd.com/doc/16767881/East-Timor-Draft-Land-Law-June-2009">Draft Land Law</a></b><br />
<br />
Who owns East Timor? The East Timor Department of Justice is presently conducting public consultations on the draft new land law that is purposed to clarifying the vexed question of land ownership and to resolving the chronic violent conflicts over land.<br />
<br />
Earlier information from the<i> Ita Nia Rai</i> (Our Land) land program in East Timor, which is funded by the United States Agency for International Development (USAID), indicated that the land law principle of possession would be the basis of the new law. In fact, this turns out to be a deception because rather than positing the land law principle of possession as establishing a lawful title to land, the central tenet of the draft is that possession will not be admitted against the most fundamental right of ownership of land.<br />
<br />
Rather, possession will only apply to the lesser rights that are derived from the right of ownership or from a grant on state land. All of the<i> hak milik</i> and <i>propriedade perfeita</i> rights in East Timor are documentary or documentary-provable rights in respect of which no possession will be allowed.<br />
<br />
The complete rights of ownership arose from the application of the Indonesian land law and are known as <i>hak milik</i>[1] (right of ownership) or which originated from land right grants effected under the Portuguese colonial land law and which are known as <i>propriedade perfeita</i>[2]. The lesser rights that will be susceptible to the possession rule are derived from the most complete rights of ownership or from state land.<br />
<br />
These lesser rights that derived from either the Indonesian hak milik or from a grant of a right by the Indonesian state on state land are known as <i>hak guna bangunan</i> (right of use of structures; which can exist on both land the subject of hak milik or state land) and hak guna usaha (right of enterprise; which only existed over state land). <i>Hak guna usaha</i> was granted for enterprises such as forestry, plantations, quarrying and so on including the coffee plantations in East Timor whose original Portuguese-based land titles were converted to the Indonesian statutory right of <i>hak guna usaha</i>. Hak buna bangunan was granted for residential use purposes over both land the subject of a pre-existing private (documentary) full right of ownership or state land.<br />
<br />
The derivative Indonesian land rights were of only limited duration; with the original grant being for a term of 25 years (extendable once at the state’s discretion for a further 25 years) in the case of <i>hak guna usaha</i> on state land and an initial term of 30 years for a hak guna bangunan extendable once for at most 20 years at the discretion of the hak milik owner or the state if the right is on state land.<br />
<br />
The former Portuguese lesser right of <i>aforamento</i>[3] is the land right under Portuguese law in East Timor which arose from an agreement over State land where the Grantee of the right was given the authority to fully enjoy the use of the land with the obligation to pay to the State an amount of money referred to as “<i>forro</i>", which is evidenced by an “Alvara de Concessao Definitif” or in respect of which there was already a definitive decision of the Portuguese Government before the coming into force of Law No 7 of 1976 and the land has not been surrendered by the right holder or his/her legal representative.[4]<br />
<br />
The lesser rights of <i>hak guna bangunan</i>, <i>hak guna usaha</i> and <i>aforamento</i> will be subject to the proposed 20 year possession rule thus allowing a current occupant of land the subject of those rights (or that occupant relying on his predecessors’ possession where the present occupant’s possession is less than 20 years) to exclude the documentary title holder of the lesser right (but not of the underlying full right of ownership) from the land whose title will be extinguished. The documentary title holder of the lesser right will be entitled to compensation for the historical value of the land which will be paid by the state that will then be entitled to recover the compensation debt from the possessor who has gained title.<br />
<br />
What will be the practical effect of this rule? The first problem is that those rights (at least the Indonesian <i>hak guna usaha</i> and <i>hak guna bangunan</i>) are of only limited duration anyway. In the absence of an extension of the initial grant of those rights by the hak milik owner or the state (depending on whether the right was granted on private land or state land), the initial terms of 25 and 30 years will have almost expired by the time the period of possession has run against them leaving, at most, 5 or 10 years of ownership to the successful occupant.<br />
<br />
After that, the land will revert fully to the documentary hak milik owner or the state. In regard to the state land, it is interesting to note that there is a general prohibition of possession against state’s public domain land in the draft as well so there is an internal contradiction in the draft on that point, at least, and it will be interesting to see how this contradiction will be resolved at the practical level when considering claims of occupation of hak guna usaha land which exist on state land or claims to hak guna bangunan land in respect of which the underlying full right is vested in the state itself.<br />
<br />
Possession can only operate against the documentary holder of the hak guna usaha or hak guna bangunan. It can not operate against the documentary owner of the underlying full right of ownership or the state’s right to the land at the expiry of the term. It is not clear in the draft what the right gained by a successful occupant of hak guna bangunan or hak guna usaha will be.<br />
<br />
A successful possessor can not gain the full right of ownership because that is vested in the owner of the full underlying right so a successful applicant could only ever gain something which is similar in nature to the original hak guna bangunan or hak guna usaha and to the extent that it can only be of a limited term. It will, in effect, be a type of lease only – which will eventually be lost in any event. So, it might be asked, what real advance is being rendered by this reform?<br />
<br />
To return to the present purpose, the draft land law does not permit possession to operate against the documentary owners of hak milik or propriedade perfeita. It is only permitted against the lesser, derivative rights that were carved from the underlying full ownership right in the case of private land or from the state’s rights in the case of state land in respect of which the lesser right was granted.<br />
<br />
Having regard to the limited operation of possession as set out in this draft land law, the most critical edict of this draft is that the owners of documentary title to the fundamental right of ownership in East Timor who were unlawfully dispossessed of their land at any time in the past will not be affected or encumbered by any possession except where there has been possession of any lesser right on the land the existence of which is entirely dependent on the master right of ownership. This will be so whether the possession has been in good faith for 20 or more years or not.<br />
<br />
Most dispossessions occurred because the owners were killed or died during the illegal occupation by Indonesia or the owners fled their land and or East Timor itself in the face of violence or the threat of violence as the long conflict dragged on for 24 years or because of their political or ideological alignments. Even in the post independence period, dispossessions have taken place as late as 2006 because of internal political instability and violence[5].<br />
<br />
Abandoned land was re-allocated (but not with any legal title) by the military in the early years of the occupation and this was continued by the National Land Agency when the Indonesian civil administration was established in East Timor and into the present era under UNTAET and by the independent state which has continued to administer private abandoned land. These allocations are the root of many disputes and conflicts over land in East Timor.<br />
<br />
Many of the originally unlawfully occupied properties were transferred on to third parties but not with any formal legal title so these occupants or the last in a series of occupants will have no claim at all since they are not in possession of the lesser rights.<br />
<br />
Some were fraudulently granted by the Indonesian National Land Agency (one of the most corrupt of all Indonesian bureaucracy). If the fraud can be proven, the otherwise lawful owner who relies on the original documentary title that was fraudulently extinguished, should be entitled to reclaim the land and that will be permitted to because no possession is admitted against the original lawful documentary owner of the hak milik or propriedade perfeita.<br />
<br />
Many rights created during the occupation were lawfully granted to good faith purchasers. Their titles will not be disturbed by any long term possession because they hold the documentary title. This will be the case for the 40.000+ Indonesian land rights and any extant Portuguese colonial land rights (whose existence is doubtful anyway because Indonesian legislation converted them all to Indonesian statutory rights) - except the lesser ones described at the beginning of this analysis which will be the subject of possession. But again, the underlying documentary (or state) title will continue to exist and will arise fully and completely again in the hands of the original documentary owner when the term of the right that has been gained by possession expires.<br />
<br />
And so, ultimately, no documentary title can ever be extinguished by possession and those who own the original documentary title to land in East Timor will have their entire property ownership rights in the land restored to them.<br />
<br />
This is the juridical concept of restitution. It is the opposite of what the initial information issued by the East Timor government’s Department of Justice Ita Nia Rai land program stated and that was that possession would be the principle concept in the forthcoming land law reform.<br />
<br />
Restitution is not a new idea. In South Africa, for example, with the end of the racist dictatorship, the South African constitution gave people and communities who had been dispossessed of land as far back as 19 June 1913 as a result of racially discriminatory laws or practices the right to restitution of that property or to fair compensation . People who had been dispossessed of their land had until December 1998 to lodge a claim for the restoration with a Land Claims Commission.<br />
<br />
It is estimated that the total of 67 531 claims were lodged before the deadline (see this link for more information on this exercise in restitution in South Africa). Restitution was also implemented in post-communist states in Europe following the collapse of the socialist empire (see for example, the case of Bulgaria or Romania).<br />
<br />
Land restitution programs link the past and the present, and may allow former landholders to reclaim lands which formed the basis of earlier identities and livelihoods. Restitution also has a moral weight that holds broad appeal; it is represented as righting injustice and healing the injuries of colonialism.<br />
<br />
Restitution - not possession - is the principle concept of the draft East Timorese land law and the evident policy of the Government of East Timor.<br />
<br />
This point needs to be the central message of the public consultations. The restitution of the documentary owner of the most complete rights of land ownership in East Timor is the critical issue that must be the subject of a complete and participatory consultation process.<br />
<br />
The central tenet of the draft appears, therefore, not as the deployment of a flawed notion of possession in the limited circumstances described above, but the entire restoration of the documentary owners’ rights through the juridical principle of restitution. Although this is never expressly stated in the draft.<br />
<br />
This reform highlights another important point and that is the repeal of the present applicable land law in East Timor that admits possession against the owner of the <i>hak milik</i>/right of ownership that is evidenced by a documentary title.<br />
<br />
This applicable law is contained in Indonesian Government Regulation No 24 of 1997 on land registration which permits good faith 20-year possession against a <i>hak milik</i> (right of ownership) owner as well as the owners of lesser rights.<br />
<br />
Government Regulation No 24 of 1997 includes the following provision:<br />
<br />
Subsection 2<br />
Evidence of Old Rights<br />
<br />
Article 24<br />
<br />
(1) The existence of a land right resulting from the conversion of an old right shall be proven with evidence in the form of written documents, witnesses’ information, and/or statements made by the party in question which are evaluated by the Adjudication Committee in the case of systematic registration or the Head of the Land Office in the case of sporadic registration as having an adequate content of truth for purposes related to the registration of the right in question, of the right holder, and of other parties’ rights which encumber it.<br />
<br />
(2) In the case where there is not any evidence or there is no longer any evidence as meant in paragraph (1), the recording of the right in question can be carried out on the basis of the fact that the land parcel in question has been physically possessed for twenty (20) consecutive years or more by the person applying for the registration of the right in question and his/her predecessors, under the following conditions:<br />
<br />
a. that the possession of the land parcel in question has been made in good faith and in a transparent way by the person in question as the party which is entitled to it;<br />
<br />
b. that the possession of the land parcel in question was not questioned by the relevant adat law community or the relevant village/kelurahan community or other parties either before or during the period of announcement as meant in Article 26.<br />
<br />
It is equally important that this point be clearly articulated in the public consultation process.<br />
<br />
But, aside from the strict legalities of restitution of land titles to those dispossessed during the illegal occupation of the homeland by Indonesia, the restoration of the documentary land title owners in East Timor will have some fundamental impacts not just on the legislative landscape, but, perhaps more importantly, on the political, social and economic life of the country.<br />
<br />
It will mean the restoration of the vast real estate holdings of the political and economic elite - those East Timorese aligned to either (or both) the Portuguese and Indonesian dominations – who for whatever reason, were unlawfully dispossessed of their land as the flow of political power in East Timor swung from the European colonists to the Indonesian occupiers and thence into the post-independence era. It will mean the dispossession of occupants of these lands or demands from the land owner for rent. Many fled the Indonesian invasion. Many gained land through their personal integration with the occupation. Still others lost their land because of internal political strife. Even in the post-independence period, lawful owners of land have been terrorised into leaving their homes because of their political affiliations to either Fretilin or the centre-left Gusmao political structures.<br />
<br />
Documentary title holders whose titles will be confirmed will wish to resume occupation themselves or lease the land out for market-value rent or permit third parties to carry out residential or agricultural developments or other exploitations of natural resources such as quarries, mining, forestry, plantations and the like. If such developments are inhibited by conflicts over land or lack of legal clarity of land right ownership, that will have a considerable impact on economic development and poverty eradication which are critical objectives of the government and the international donor community.<br />
<br />
But, the level of land conflicts will not be reduced nor will the great bulk of disputes be settled. Indeed, it may be that the restitution of documentary land titles in East Timor holds the potential to destabilise social harmony in land relations in East Timor (such as they are) by introducing a new element that is bound to inflame the situation. This new element is a clear statutory basis for dispossessed documentary title holders of the right of ownership to land in East Timor to reclaim their land.<br />
<br />
Another feature of the draft is that it provides for mandatory payment of compensation by parties awarded a title based on possession to the dispossessed documentary title holder of the lesser rights mentioned above that will be subject to the possession rule. This state-imposed obligation on citizens in these circumstances is unusual. It has also been pointed out that compensation will not be for present market value but the value of the land at the time of the dispossession. This would violate the normal democratic "just compensation" principle of compensation of the current market value for the involuntary extinguishment of private land rights.<br />
<br />
The fundamental purpose of the law of land is to provide security of tenure and certainty of title. These are essential ingredients of the civil peace and without them, order is under constant threat; as is the rule of law. Economic development and poverty alleviation are lost.<br />
<br />
And that is what the new East Timorese draft land law will do to some extent. But it must be very clearly understood that land - and any land law - involves not just fine questions of law but turns attention to the fundamental social, economic and political structures in all human societies.<br />
<br />
Property laws entrench private property – and inequality - as a fundamental basis of capitalist social relations. Socialist property laws, and some other developing countries’ laws (including the present basic land law of East Timor; the Indonesian Basic Agrarian Law) favour public or state ownership and or control of land – as well as a central role for the state and those who control the state apparatus and their relatives and cronies – in the economy.<br />
<br />
The public consultation process must be honest and transparent. It must be participatory and conducted over a sufficiently long period of time to permit input from civil society and other stakeholders - and not merely take account of the interests of the landed class whose titles are about to be confirmed. The government is only proposing a few months of consultations but at least a year is needed.<br />
<br />
Civil society in East Timor and the international community must ensure that they make heard the claims of the disempowered and vulnerable poor, of farmers, of traditional communities, women, the Church and the youth. Undoing the past injustices relating to land and property ownership and providing access to land and land equity through land reform and redistribution in the present and future, require a fully informed policy process that leads to a regulatory framework - not just one draft law - that pays due regard to human rights and the universal principles of justice, equity and fairness.<br />
<br />
That should be focus of the land law reform program in East Timor. Instead, after many years, what appears to be a draft that is so limited in its consideration of the broader legal framework that needs to be developed for East Timor. A properly constructed land law reform program would be looking not just at the issue of the confirmation of documentary title holders of the full right of ownership of land in East Timor but an entire policy framework that seeks to address the whole range of central issues. A piecemeal approach is not really a sound solution.<br />
<br />
The salient features of the draft need to be properly explained to the community and specifically to title holders and occupiers of land in East Timor.<br />
<br />
The traditional communities of East Timor – each of which has its own customary land law – must also be properly informed by the government about the provisions of the law that do not confer legal status on East Timorese customary land tenure systems or the traditional individualised land rights that have existed in East Timor since time immemorial.<br />
<br />
Due regard should also be had to the potential implications of this draft, should it become law, for land disputes and conflicts in East Timor. Once occupants realise that any rights they gain will not be long as they are extinguished by the effluxion of time, there will be instability. As the <i>hak guna bangunan</i> or <i>hak guna usaha</i> rights gained through possession on state land (if that can be permitted in light of the general prohibition of possession against state pubic domain land and this is where all of the limited term <i>hak guna usaha</i> exist) or private full ownership rights expire when the terms run out, the land will revert to the formal ownership of the state or to the underlying documentary-evidenced complete right of ownership holder in the case that the right existed on private land. These rights will be found over nearly all residential land in Dili and most district centres as well as the prime agricultural and coffee plantation lands.<br />
<br />
Occupants who have relied on long-term possession will be liable to eviction or demands for the payment of rent by their new landlords.<br />
<br />
Land relations will be destabilised because there is no complete policy solution. A half-hearted and misconceived attempt at land reform is hinted at in the draft but it goes nowhere near the existing applicable Indonesian land reform laws and regulations – which will be, conveniently, avoided. It places the burden of compensation in an inappropriate vessel. It does not permit long term possession against the vast majority of land rights in East Timor. The full rights of ownership evidenced by a documentary title – either <i>hak milik</i> or <i>propriedade perfeita</i> – will continue to have complete lawfulness and legitimacy without the risk of any possessory extinguishment. There lies the true policy behind this draft.<br />
<br />
-----<br />
Footnotes<br />
<br />
[1] Article 20 of the <a href="http://www.scribd.com/doc/16626212/Indonesia-Basic-Agrarian-Law-No-5-of-1960-">Basic Agrarian Law of 1960</a> defines hak milik:<br />
<br />
(1) A <i>hak milik</i> (right of ownership) is the inheritable right, the strongest and fullest right on land which one can hold, subject to the provision contained in Article 6.<br />
<br />
(2) A<i> hak milik</i> can change hands and be transferred to other parties.<br />
<br />
<i>Hak milik</i> is the Indonesian equivalent of the English common law’s fee simple.<br />
<br />
[2] The best available English language definition of the <i>propriedade perfeita</i> is in Indonesian Government Regulation No 18 of 1991 on the conversion of land rights in East Timor in accordance with the Basic Agrarian Law where article 1(2) provides as follows: “The right of “<i>Propriedade Perfeita</i>” is the land right under Portuguese law in East Timor, the character of which is complete and absolute, namely, the right to enjoy the produce and use of the land in a full and unrestricted manner provided that it is not in contradiction with the provisions of the law and the rights of other persons, which is evidenced by an “<i>Alvara de Propriedade Perfeita</i>” or in respect of which there was already a decision of the Portuguese Government before the coming into force of Law No 7 of 1976.” It is interesting to note also that the draft ignores the prima facie fact that all of the old Portuguese colonial land rights were extinguished by conversion into the Indonesian statutory rights under the Basic Agrarian Law of 1960. 2004 ETLJ 1 A Note on Land Rights in East Timor [Government Regulation no 18 of 1991 on the conversion of land rights in east Timor] & the Purported Suspension of Article 5 by Government Regulation no 34 of 1992.<br />
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[3] Interestingly, the draft land law makes no reference to the other lesser Portuguese right; <i>arrendamento</i>. It is defined in Article 1(4) of Indonesian Government Regulation No 18 of 1991 as follows: The right of “<i>Arrendamento</i>” is the land right under Portuguese law in East Timor which arises from a lease agreement to enjoy the use of State land with certain limitations and with the obligation to pay rent to the State which rent is referred to as "renda", which is evidenced by an “<i>Alvara de Arrendamento</i>” or in respect of which there was already a decision by the Portuguese Government before the coming into force of Law No 7 of 1976 and the land is still controlled by the right holder.<br />
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The draft also omits reference to another of the lesser Indonesian land rights - <i>hak pakai</i> (the right of use)<br />
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[4] Article 1(3) of Indonesian Government Regulation No 18 of 1991.<br />
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[5] Those who have been excluded from their land because of their political beliefs in recent times – families have had to move from areas dominated by one or the other “ethnic regional” group – have a legal basis for resuming the full exercise of their property rights by seeking the eviction of unlawful occupants who have been there for less than 20 years. But few would dare.<br />
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Warren L. Wright BA LLB (former Property Rights Adviser to the United Nations Transitional Administration in East Timor) 09 July 2009 First published on the <a href="http://easttimorlegal.blogspot.com.au/">East Timor Law and Justice Bulletin</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-44875014091535253382012-05-25T15:47:00.000-07:002013-06-09T12:50:54.977-07:00Land Policy in East Timor - The Cart before the Horse<b>Original Citation: 2009 ETLJ 10 Land Policy in East Timor - The Cart before the Horse</b><br />
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<a href="http://easttimorlegal.blogspot.com/2009/05/east-timor-government-launches-land_01.html">The government seems intent on finding out who owns the land in East Timor</a> without there being the sound foundations of a reformed land law or land right registration decree law. (see also the following posts in the <a href="http://easttimorlegal.blogspot.com.au/">East Timor Law and Justice Bulletin</a>: <a href="http://easttimorlegal.blogspot.com/2008/11/east-timor-government-to-start-land.html">Government to start land data collection in Liquica and Manatuto</a>, <a href="http://easttimorlegal.blogspot.com/2008/07/nationwide-land-data-collection-to.html">East Timor Nationwide land data collection to start in East Timor </a>and <a href="http://easttimorlegal.blogspot.com/2008/07/east-timor-ministry-of-justice-dntpsc.html">East Timor Ministry of Justice & DNTPSC Launch National Property Cadastre</a>)<br />
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The question that arises is why should the government proceed in such an exercise before there is legal clarity about the status of the 40000 odd land rights (over most of the most valuable land in East Timor) created during the Indonesian occupation, or about the abolition of the Portuguese land rights created during the colonial period, or, even, indeed, about the status of land rights that exist over most of the national territory by virtue of local customary law.<br />
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The data collection program seems to be an odd approach based on a misinformed policy. It ought to have been preceded by a comprehensive land law that resolved the legal problems and one that provided for a proper process for land right ownership determination and recording that incorporated the judicial system in the event of disputes and conflicts - frequent and violent occurrences in East Timor's cities and the countryside.<br />
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The data collection exercises bring no clarity or certainty to the legal ownership of land in East Timor. This program is not being conducted in accordance with the conventional land right registration policies and laws. There was already a national claims registration process some years ago. It is a shame that so much money and resources are being consumed in this way. It will be a greater shame if it results in the unjust entrenchment of unverified claims and that carries the risk of further disintegration in the social relations in East Timor that relate to land.<br />
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Warren L. Wright BA LLB<br />
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02 May 2009Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-61507199415449938332012-05-25T15:29:00.000-07:002013-06-09T12:51:51.994-07:00East Timor : Language and The Law<b>Original Citation: 2009 ETLJ 9 East Timor : Language and The Law</b><br />
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<b>Introduction</b><br />
Legal information on East Timor is difficult to find even on the web. There are hardly any East Timor law-dedicated sites even though it has been 6 years since East Timor won its independence. The other problem is that even when access to East Timor legislation is found, new laws are issued by the East Timor Parliament and the Government only in the Portuguese language which hardly anyone in East Timor can understand. Although Portuguese is spoken by many people (for example, in Brazil and Portugal), the distribution of this language throughout the world is also very limited.<br />
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<b>Language of the Law and the Rule of Law</b><br />
This language issue presents serious problems for the whole idea of the rule of law in East Timor: How can citizens be expected to comply with law that can not be read by the ordinary person? Even lawyers have difficulty interpreting law when they know the language in which the law has been drafted! It is incomprehensible that a government in any country would issue laws in a language that is not understood by its citizens and the East Timor government needs to review this policy.<br />
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This also presents problems not just for the citizens but also for the police and private lawyers trying to advise their clients about their legal rights and obligations. Again, hardly any of the police in East Timor understand Portuguese so how can they enforce the law properly? Similarly, the private lawyers in East Timor were nearly all educated in Indonesian law schools and have never learnt Portuguese so they also encounter grave difficulties in advising and representing citizens charged with criminal offences.<br />
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How can we speak of the efficacious rule of law in East Timor in these circumstances?<br />
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<b>Legal Language and the Courts in East Timor - Problems in the Administration of Justice</b><br />
In the courts of East Timor, the language problem in even worse when it comes to the administration of the law by judges. The government of East Timor has been appointing foreign judges from Portugal to the bench in East Timor. The consequences of this are also of concern. The first problem here is that the vast majority of the applicable law in East Timor is based on the Indonesian legal system and only available in the Indonesian language. The Portuguese judges can not read Indonesian and there is a scarcity of Portuguese/Indonesian translators so in order for the Portuguese judge to understand the law that he or she must apply, the Indonesian text has to be translated into English and then translated again into Portuguese. In this double translation process, the fine nuances of legal words and phrases and even the whole spirit of the original text are distorted, if not lost. In these circumstances, it would not be surprising if there were cases of miscarriages of justice for the people of East Timor.<br />
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The second problem that the language issue presents to the Courts of East Timor is that while the judge is conducting the proceedings in his or her mother tongue, namely, Portuguese, the police and the accused will in most cases not understand this language and will only be familiar with either Tetum or Indonesian. So everything must be translated. And again, sometimes there has to be a double translation which carries the risk described above of losing the original meaning of the law or of the evidence. Here, the issue can often be even more complicated if, for example, the judge is speaking in Portuguese, the prosecutor is using Tetum but the defendant or the accused may only speak his or her regional language. In remote areas of East Timor, even Tetum and Indonesian are not understood and one of as many as 35 different regional languages may be the mother tongue of the defendant or accused. So the language problem and the interpretation and meaning of law and evidence is further compounded by this.<br />
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<b>Issues for Non-Portuguese speaking Critiques of East Timor law</b><br />
One of the important aspects of any legal system is the capacity for it to be subject to constant scrutiny and critique. Law should never be carved in stone so that it is unchangeable. The law must evolve with society. The law must also comply with fundamental human rights precepts and the Constitutional regime governing the enactment of legislation. While foreign critiques of a nation's law might be ignored by the legislators, there are many prominent and learned international jurists who are able to assess a nation's laws to see if they do comply with basic standards of justice and equity and, if necessary, trigger a reform movement that might be participated in by national citizens and entities who advocate for law reform within a country.<br />
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As English is fast becoming the leading language of international law and economy and is widely spoken and understood, it is important that a country's laws be available in English so that they can be subject to this scrutiny and critique process. English translations are also of critical importance for foreign investors who need to know the legal regime governing their investment and activities. In East Timor, it is only because of the United Nations office (UNOTIL) that most of the laws enacted by the Parliament and the Government of East Timor have been translated and published in English. Although the translations are not official translations, they are still a valuable source of legal information on East Timor for these purposes.<br />
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Warren L Wright BA LLB<br />
Sydney 19 June 2006<br />
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See also: <a href="http://www.adnkronos.com/AKI/English/Politics/?id=1.0.1805885650">East Timor: Expert calls for end to legal language barriers</a><br />
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Dili, 24 Jan. (AKI) - East Timor’s laws should be translated into the local Tetun language to give people a better understanding and respect for the law, according to one of the country's legal experts.<br />
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In an interview with Adnkronos International (AKI), Warren Wright, editor of the East Timor Law Journal, commended the Asia Foundation’s access to justice program – which is translating the laws.<br />
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But he claimed that this action was not enough.<br />
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“Access to the law in a language that one understands is a fundamental democratic right that has not always been a salient feature in East Timor,” Wright told AKI.<br />
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“Through laws, citizens get to know their legal rights and obligations in relation to each other and to the state, as well as the nature of the legal conflict resolution mechanisms."<br />
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However, Wright stated that more needs to be done to make the laws accessible to East Timor’s one million people, half of whom cannot read or write.<br />
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“It is still also necessary to inform ordinary people about the meaning of the laws. The government should carry out public information campaigns about important new laws, and how they affect society,” he said.<br />
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The Asia Foundation’s program includes a public legal information campaign. The program uses talkback radio programs, public meetings in rural areas, and posters and brochures to educate citizens about the country’s evolving legal framework.<br />
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Among the new Tetun-language publications is a reference volume for the court of appeal, an explanation of court responsibilities, and brochures explaining key provisions of the new penal procedures code.<br />
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Most of East Timor’s laws were written in Portuguese, the language of the former colonizer.<br />
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Portuguese and Tetun are two official languages in East Timor but the former is now only understood by, and associated with, a tiny political elite residing in Dili.<br />
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The language barrier in understanding the laws mirrors similar difficulties faced by East Timorese in obtaining jobs in public administration, where Portuguese is often required.<br />
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Most of the young, educated East Timorese studied in Indonesian-run schools during Jakarta’s 24-year long occupation of the former Portuguese colony.<br />
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The language issue has often been mentioned as one of the main reasons for the alienation of the young and the violence that still pervades East Timor.Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com3tag:blogger.com,1999:blog-1364819543487429118.post-58585022583855370182012-05-24T16:59:00.000-07:002013-05-18T17:30:35.019-07:00Guidelines for the Preparation of Outgoing Requests by East Timor for
International Judicial Assistance – Extradition Requests and Letters
Rogatory2006 ETLJ 5 Guidelines for the Preparation of Outgoing Requests by East Timor for International Judicial Assistance – Extradition Requests and Letters Rogatory<br/><br/>[Practical Manual]<br/><br/>Dr Anton Girginov Ph D [1]<br/><br/>Dili/Pristina, 2006<br/><br/>C O N T E N T S<br/><br/>I.Requests for extradition to East Timor (active extradition)<br/><br/>II. Letters rogatory to another country (obtaining evidence abroad)<br/><br/>III. New European developments in mutual legal assistance<br/><br/>I.Requests for extradition to East Timor (active extradition)<br/><br/>A. The Essence of Active Extradition<br/>Active extradition to East Timor involves a request by the competent East Timorese authorities [see further in the present text] to the appropriate authorities of another country to surrender to East Timor a fugitive found in that country, whom is either a suspect (defendant) or has been convicted (sentenced) of a criminal offence in East Timor. If the other country does not reject the request of East Timor for extradition but grants the requested extradition, that country, by executing the extradition, gets rid of the wanted person who, usually a foreigner (generally, own nationals are not subject to extradition), is also more or less related to criminal activities being a possible or actual criminal offender.<br/><br/>In this regard, extradition resembles expulsion of foreigner. However, in contrast to expulsion, extradition is for the benefit of the requesting country. Generally, the requesting country wants the person for trial or for execution of an imposed punishment. It follows that extradition of the person is not usually for the benefit of the surrendering country (where the person has been found) since that country has often nothing specific against him/her.<br/><br/>For that reason no one in East Timor shall expect and/or plan to obtain the surrender of the wanted fugitive through his/her expulsion by another country. Such a final result may be achieved only if the other country carries out disguised extradition in favor of East Timor. But this sort of “extradition” shall not be encouraged or/and expected. It is in gross violation of human rights standards because it deprives the wanted person of normal extradition proceedings within which s/he might exercise his/her procedural rights to get a decision for refusal of his/her extradition.<br/><br/>B. Extradition and Transfer compared<br/>Extradition, in particular of a sentenced (or convicted) person, resembles transfer of sentenced person (prisoner). These two methods of international judicial co-operation in criminal matters both involve the surrender of a sentenced offender to another country where his/her punishment will be executed.<br/><br/>However, there are some important differences between “extradition” of such a person and his/her “transfer”. Transfer involves the repatriation of a convicted criminal to the country of his/her nationality (citizenship), which will execute the punishment on that person. Thus, the receiving country is effectively taking care of its own national (citizen). It follows that the transfer is generally for the benefit of the person and usually requires his/her consent. Hence, whenever a wanted person agrees on his/her transfer to his/her own country, it would never be necessary for this country to seek his/her extradition and be restricted by the Rule of Speciality [the surrendered person may be prosecuted, tried and/or punished in the requesting country only with respect to the subject matter for which s/he has been extradited for by the requested country].<br/><br/>In contrast, in case of extradition the country, which receives the person, is the one that has imposed the punishment on him/her. Extradition is for the benefit of that country and the consent of the person is never required. Wherever extradition is granted, the requesting (receiving) country is restricted by the Rule of Speciality with respect to the prosecution, trial and/or punishment of the extraditee.<br/><br/>It follows that if an East Timorese punished in another country agrees to be transfered to East Timor and his/her transfer could really take place, it, though theoretically possible, does not make any sense from practical point of view to parallelly request his/her extradition for another criminal offence. By agreeing to serve his/here sentence in East Timor, the East Timorese national punished abroad has accepted all the risks of being prosecuted, tried and/or punished in East Timor for other offences without (free of) any legal restrictions in respect of them. Such situations might usually occur where the person mistakenly believes that his/her crime(s), to which East Timorese criminal law is applicable, are not and will not be discovered.<br/><br/>C. Active extradition in East Timor<br/>Active extradition in East Timor (namely, preparation and proceeding with outgoing extradition requests) is governed by Articles 44 – 46 of the Indonesian Law on Extradition (ILE) in conjunction with S. 3.1 of UNTAET Regulation No. 1999/1 and Section 165 of the East Timorese Constitution. These rules, whilst necessary, are never sufficient. The efficient and successful implementation of any law on active extradition is not only a legal issue but a tactical and strategic issue as well. That is why, unlike domestic criminal proceedings, which are governed exclusively by the principle of legality, extradition proceedings (because of the involvement of another country) are governed also by the principle of opportunity.<br/><br/>D. Prerequisites to obtain extradition from another country<br/>The prerequisites for extradition from another country form two groups: conditions for extradition (which must be met) and impediments to extradition or grounds for refusal (which must not occur).<br/><br/>1. There are three general conditions for extradition.<br/><br/>• The first one concerns the relations of the requested country with the requesting country. Is is well known that the requested country would never extradite to East Timor regardless of its relations with it. Normally, the two countries must have an extradition treaty (bi- or multilateral). If not, there might be three other alternative (extratreaty) conditions for consideration of East Timorese requests and eventually granting extradition to East Timor. [a] The first such condition is Reciprocity with East Timor as requesting country (this is the case with the Civil Law countries when requested for extradition). [b] The second alternative extratreaty condition is normative and does not require any specific behavior or statement from East Timor. It occurs where the requested country maintains a list of so-called “Designated Countries” (e.g. New Zealand) and East Timor is in it. [c] The third alternative extratreaty condition also does not require any specific behavior or statement from East Timor but is individual. It occurs where the requested country’s Head of State or another senior official is authorized by law to allow for institution of extradition proceedings in favour of countries with which they have no extradition treaty (e.g. South Africa), and this official has issued such an order (ruling) in favour of East Timor.<br/><br/>Because East Timor has no extradition treaty with any other country and very few and far away countries allow for extra-treaty extradition proceedings on the grounds of designated countries list or individual order, RECOPRICITY appears the basic condition for extradition. Reciprocity may be invoked in two ways – by words or by actions.<br/><br/>Reciprocity is invoked by words only when the interested country declares it will do so, that is, proceed in good faith with extradition requests from the requested country.<br/><br/>Obviously, however, it is much better to rely on invocation of reciprocity by action, namely to have already considered an extradition request from the country which is now being requested. This means, in the first instance, East Timorese authorities must actively search for fugitives in East Timor or who are crossing its territory. These same authorities must review the international search list of “Interpol” and put these persons in a national search list, which is to be then used for computerised passport control at all border check points. They should apprehend as many persons sought internationally as possible and consider extradition requests from as many different countries as possible.<br/><br/>• The second general condition for extradition is the so-called Dual Criminality. It means that the offence for with extradition is being requested shall be a crime both under the law of the requesting country and the requested country. This condition reflects the basic idea of extradition, namely that countries unite their efforts in the fight against crime where, because and to the extent they face same (common) criminal offences. This condition is considered by the time of the decision on the extradition request. Hence, even if by the time of its commission the offence constitutes a crime only under the law of East Timor and not under the law of the other country, extradition may though be granted, provided that meanwhile the requested country criminalizes the same conduct (act or omission).<br/><br/>In determining whether an offence is an offence punishable under the laws of the two countries, it shall not matter whether the laws of both the requesting country and the requested country place the acts or omissions constituting the offence within the same category of offences or denominate the offence by the same terminology or define or characterize it in the same way. Besides, the constituent elements of the offence may be different under the laws of both countries, the totality of the acts or omissions as presented by the requesting country shall be taken into account (dual criminality in the abstract sense).<br/><br/>• The third general condition for extradition is related to the jurisdictions of the two countries. This condition is two-fold. It requires, on the one hand, that the criminal law of East Timor as requesting country is applicable to the offence for which the extradition is requested. Otherwise, the extradition shall be rejected because East Timor can not do anything legal to the wanted person. On the other hand, the condition in that the criminal law of the requested country is applicable to the offence for which the extradition is requested. Otherwise, the extradition is: either mandatorily rejected if the other country’s judiciary has already resolved the case by rendering a final judgement (mandatory ground for refusal), or expectedly rejected as by necessarily applying its own law the other country’s judiciary would take the responsibility for the resolution of the case and prosecute and try on its own, and/or punish on its own the wanted person (optional ground for refusal).<br/><br/>2. There are also some other grounds to refuse extradition:<br/><br/>a/ The other mandatory grounds for refusal are:<br/><br/>• Related to the nature of the offence for which the extradition is requested; if the requested country considers this offence political, military or fiscal, it shall refuse extradition (Its worth remembering that terrorist acts though committed with political purpose and considered political crimes under domestic criminal law are never considered such offences under extradition law; likewise, the war crimes are never considered military offences under extradition law).<br/><br/>• Related to the legal consequences of the offence for which the extradition is requested; if by the time of the decision they have been terminated under the law of any of the two countries due to lapse of time, amnesty or pardon, the requested country shall refuse extradition.<br/><br/>• Related to the the possible treatment of the wanted person in the requested country; if the requested country establishes that (a) the person may be denied fair trial or (b) may be subject to inhuman punishment or treatment outside the criminal proceedings there, it shall also refuse extradition.<br/><br/>b/ The non-mentioned so far optional grounds for refusal are:<br/><br/>• Related to the place of commission of the offence for which the extradition is requested; if it is committed in the territory of a third country, the requested country may refuse extradition where it finds that the extraterritorial application of East Timorese law to the offence is substantiated by such a principle which is contrary to its legal concepts.<br/><br/>• Related to the nationality of the wanted person: if that person is a national (citizen) of the requested country by the time of the decision on the extradition request, it may refuse extradition regardless of whether s/he possesses any other nationality and in particular, of the requesting country. Civil Law countries, in particular, are obliged under their domestic law to refuse extradition of their nationals. This actually is a matter of legal tradition there rather then a matter of lack of democracy, solidarity, understanding or whatsoever. In contrast, Common Law countries generally extradite their nationals out of necessity. Because these countries normally do not provide for extraterritorial application of their criminal laws, they can not prosecute, try and punish even their nationals for criminal offences committed in another country. Hence, Common Law countries have no other option in such cases but to extradite even their nationals to the country where they have committed the offence, if that county, of course, requests their surrender. [See below]<br/><br/>E. Procedure for Active Extradition<br/><br/>1. When to consider active extradition?<br/>Active extradition shall be considered whenever a suspect, an accused or convicted person is at large: s/he has been on national search in East Timor and within a reasonable period of time (e.g. one year) was not located.<br/><br/>2. What to do if you decide to look for him/her abroad and try to obtain his/her extradition from another country?<br/>If the public prosecutor in charge of the case is sure that the wanted person is in the territory of a specific country and s/he will be there for a comparatively long period of time, at least, two months, then the public prosecutor in charge of the case can consider directly the preparation and sending of the official request for his/her extradition to the other country.<br/><br/>However, such a situation is very exceptional. Generally, the public prosecutor in charge of the case has to start with a petition for the international search and provisional arrest of the person by filling out the so-called “Red Notice” for him/her. This petition, generally called the INTERNATIONAL ARREST WARRANT, is immediately circulated worldwide through the channels of Interpol. (Interpol is a highly specialized and very skilful international police organization but designed for communications only; it can’t make any decisions on behalf of the public prosecutor in charge of the case, either on legal or on tactical issues.) It must be borne in mind that not all countries recognize arrest warrants on the basis of Interpol’s Red Notice as a valid request (petition) for provisional arrest of the wanted person. That is why such countries need to be approached by forwarding to each of them (or at least, to those countries where the person is likely to be found) an explicit petition for the provisional arrest of the wanted person in accordance with their laws.<br/><br/>The petition for international search and provisional arrest is not just a step towards the extradition of a wanted person. This petition necessarily contains a promise of the petitioning country that once the wanted person is arrested in another country within the Interpol’s network, the petitioning country will send on time to it an official request for the extradition of the person. Otherwise, no country would respond to the petition and would never arrest the person. That is why the petitioning country is likely to discredit itself if it does not send its extradition request on time.<br/><br/>Two common mistakes should be foreseen and avoided.<br/><br/>a. The first mistake is to assign Interpol to only find the location of the wanted person (as if s/he is a missing person). Where the whereabouts of a person sought for prosecution, trial or execution of punishment are unknown, the police are usually eager to locate him/her abroad and request an international report of his/her location. However, the public prosecutor in charge of the criminal case must not allow the police to do this until the extradition file is completely ready and all supporting documents for the future request are prepared [SEE BELOW NEXT ITEM 3]. If this is done, a request for international location will not be necessary at all. Once the extradition file is ready with everything, which might serve as supporting documents to the future official request for extradition, the next step is usually the preparation of a petition for an international search and arrest of the fugitive.<br/><br/>Requests for international location are not only unnecessary but are also risky for two reasons.<br/><br/>Police in other countries are not always careful with foreign cases. When checking the identity of the person sought, they may alert him/her that East Timor is interested in his/her extradition. This may cause the person to flee to another foreign country where his/her extradition to East Timor is less possible or impossible.<br/><br/>Additionally, the request for international location only may be mistakenly understood as a petition for a provisional arrest. Such mistakes are not uncommon and may be made not only by the police but also a foreign court. If the person is put under provisional arrest pending the extradition request all supporting documentation must be compiled in a very limited period of time, almost never exceeding 40 days. East Timorese authorities will most likely be unable to meet this deadline. Consequently, the term of detention will expire before the extradition request is received and the person will be released.<br/><br/>The released fugitive obviously has no interest in waiting patiently for East Timorese authorities to prepare and send the fully documented request for extradition. Instead, it is more likely s/he will flee to a jurisdiction more hostile to extradition. Besides, if this happens several times, with different persons sought, other countries are likely to reach the conclusion that East Timorese authorities do not respect the right to liberty and human rights, in general, which constitutes a sufficient ground for rejecting any future East Timorese request for extradition.<br/><br/>b. The second mistake consists of avoiding the petition for the international search and provisional arrest of the person and instead sending official extradition request directly. As East Timorese authorities must first work to ensure the apprehension of the fugitive, they should bear in mind that there are two methods to ensure the arrest of a fugitive. Firstly, the arrest may be ensured by way of a petition for his/her international search and provisional arrest (the so-called “emergency procedure”). Alternatively, the East Timorese authorities may choose to make a formal request for extradition. The latter approach involves the full arrest of the wanted person (the so-called “normal procedure”).<br/><br/>As previously mentioned, the extradition process usually begins with the issuance of a petition for the international search and provisional arrest of the fugitive. An international search is undertaken even where the country of his/her residence is known. Due to practical time constraints, this petition, unlike the formal extradition request, need not be in hard copy and through official channels (a formal written petition might otherwise take at least a week to reach the other country). Instead, the petition in question reaches the country where the fugitive resides in no more than 24 hours. This helps prevent his/her escape to a third country. When making such a petition it is important to clearly indicate that the East Timorese authorities are also to consider extradition requests of the country where the fugitive is found.<br/><br/>3. What shall the completed extradition file contain so that the international search may be triggered?<br/>This file must contain 3 identical sets of documents, which go to the following parties: the first, or “main set” will be sent to the other country, the second, “reserve set” will remain in East Timor (with the Prosecutor General’s Office or The Ministry of Justice), and the third, “own set” must remain with the public prosecutor in charge of the case. Each set must contain the following documents:<br/><br/>a. The fullest possible description of the person sought by which s/he may be identified and later, his/her nationality established too. This includes name, age, date and place of birth, gender (sex), passport, profession, main habits, physical description, photographs, fingerprints, etc.<br/><br/>b. The warrant of his/her arrest as suspect or accused person (for which pending criminal proceedings are needed), or the judgement of the East Timorese court with the punishment imposed on him/her. If the person is only a suspect or accused and the warrant of his/her arrest has been issued in his/her absence (which is often the case), that warrant must be clearly indicated that it is subject to undelayed (re-) consideration and approval by East Timorese judge in the presence of the person once s/he appears in the territory of East Timor for any reason (including his/her surrender). For that purpose it is worth attaching a copy of S. 6.2 (e) of the UNTAET Regulation No. 2000/30 and Section 165 of the East Timorese Constitution.<br/><br/>c. Full, very clear and detailed description of all facts, which constitute the criminal offence (-s) of the person, including: (i) the time and place the offence was committed, (ii) the victims with their nationalities, (iii) possible accomplices with their nationalities. The aim of this description is twofold: firstly, to enable the country receiving the request to determine that its own criminal law is not applicable to the offence (while East Timorese law is), and secondly, to establish the dual criminality of the offence [Under this principle the conduct of the wanted person must constitute a crime under the laws of both the country requesting and the country receiving the extradition request.]<br/><br/>d. The description of facts must also include any other relevant facts, which would allow the other country to determine the existence of the dual punishability of the wanted person. Namely: that there is no lapse of time and there are no other legal grounds under the law of neither of the two countries (specific forms of withdrawal from criminal activity, amnesty, pardon) which exempt from criminal liability and grant him/her immunity from prosecution and/or punishment.<br/><br/>e. The applicable criminal law provision, which envisages the offence and provides for its punishment, and also all other relevant legal provisions (e. g. on lapse of time). If the applicable provision is from the Criminal Code of Indonesia and it prescribes capital punishment, is essential to include the text of Article 3.3 of the UNTAET Regulation No. 1999/1 (and Section 165 of the East Timorese Constitution), under which capital punishment is abolished. It is important to establish that the death penalty will not be applied in East Timor to the wanted person; certain countries will not extradite an individual to a country where that individual will face death penalty.<br/><br/>f. Sufficient evidence of the offence [prima facie or lesser quantum evidence of the wanted person’s factual guilt]. Not all countries require it. However, all countries, even those, which do not require any evidence, examine the reliability of the judicial system of the requesting country, first of all, with respect of its capacity to conduct fair trials. Accordingly, by presenting the above evidence to the country receiving the request, this country is more likely to conclude that East Timor can conduct fair trials or, at least that the trial of the potential extraditee is and will be fair. It should be borne in mind that the possibility of unfair trial constitutes a sufficient ground for rejecting any future East Timorese request for extradition.<br/><br/>Once the extradition file has been completed, the right time to trigger the international search of the wanted person shall be determined. This search shall not necessarily start immediately.<br/><br/>4. When should you request Interpol to circulate the petition for international search and provisional arrest of a person?<br/>It will be very important and helpful if the Public Prosecution Service can know or predict the country where the wanted person might be found and apprehended so that the public prosecutor in charge of the case can decide whether to trigger his/her international search or not. Since East Timor has no extradition treaty with any other country, the sending of a petition for international search and provisional arrest should be avoided, if the person is likely in a foreign country which extradites only under extradition treaty or for the so-called “designated countries” (e. g. in New Zealand) and East Timor is not among them. Otherwise, it is highly probable that the fugitive will not be arrested, but instead warned that East Timor as the requesting country is seeking his/her return.<br/><br/>The situation would be similar if the wanted person is likely to be found in a territory of a country which extradites also under the conditions of reciprocity (both foreigners and nationals) but the person is its national. Even if this country extradites its nationals, it will probably require that East Timorese authorities promise to consider any extradition of their own nationals to that country if requested, before it makes any provisional arrest of the person. Obviously, it is advisable that East Timorese authorities do not make such a promise since in any event it cannot be kept. Pursuant to Section 35.4 of the Constitution of East Timor, East Timor’s own nationals are not subject to extradition to another country. If the situation arises where a country requires that East Timor make such a promise, the public prosecutor in charge of the case should not try to inspire such a step, and instead wait for the person to appear in another country where his/her extradition is possible.<br/><br/>However, if your objective is not necessarily to bring an accused person to East Timor but simply to bring this person to trial regardless of the location (even in his/her country of origin) then you can send the petition or even the formal request for his/her extradition to the accused person’s country of origin. In most cases a country which refuses extradition on the grounds that the person is its national (citizen), will also indicate that it is prepared to institute criminal proceedings against its own national at the request of East Timor. In this way the other country will follow the basic extradition principle of “Either You Punish or You Surrender” (“Aut punire aut dedere”).<br/><br/>This would mean that East Timorese authorities have to hand over the case to the other country with all the evidence and give up the idea of trying him/her. If East Timorese authorities do not do this, the risk is they will need to answer sensitive questions from the other country, such as: why East Timor do not want justice for the wanted person (?); does East Timor not want justice for the wanted person (?); do the East Timor authorities actually have any evidence against him/her (?), do they act in good faith (?) and so on. Therefore, if the public prosecutor in charge of the case is too eager in his/her efforts to secure the arrest abroad and the extradition of the person whose location is customarily in the territory of its country, then his/her actions might be even counterproductive. Not only might such efforts work in favour of the specific fugitive offender, but they might also encourage other individuals to commit offences as they would see that is possible to escape from justice.<br/><br/>5. What aspects of other’s country law and practice are worth being learned before making an extradition request?<br/>In all cases, additional information from the country of interest must also be obtained unless extradition is not possible.<br/><br/>Such information includes:<br/><br/>a. Whether the other country extradites its own nationals and under what conditions? In particular, does it extradite its own nationals under the conditions of reciprocity?<br/><br/>b. Under which system does the other country define extraditable offences? There are two main systems:<br/><br/>(i) Where extradition is permitted in relation to all offences, provided that the principle of reciprocity applies (the eliminative or minimum imprisonment system). If so, one must determine what is the minimum term of imprisonment required; or<br/><br/>(ii) Where extradition is restricted to an exhaustive list of offences (enumerative or listing system). If so, one must determine whether there is an additional dual criminality requirement.<br/><br/>c. Is there a criminal law provision in the other country’s legislation that criminalizes the same conduct which constitutes the offence under East Timorese law (for which conduct extradition might be sought)? If there is such a provision, what is the exact text?<br/><br/>d. Is evidence of factual guilt of the fugitive necessary (the common law system) or not (the civil law system)? If it is, when? Is it for accused persons only or for convicted ones as well? What evidence is required so that relevant materials about factual guilt of the person are admissible in required evidence?<br/><br/>e. What are the non-extraditable offences (political, military, tax) and who are the non-extraditable persons (nationals, residents, refugees for whom asylum has been granted)? Which of these defenses to extradition are mandatory grounds for refusal and which are optional? What are the exceptions to them? Is reciprocity necessary to benefit from these exceptions?<br/><br/>f. If the extradition sought is for execution of punishment and the person has been convicted in absentia, is the refusal to extradite mandatory? If not and it has no exceptions, but constitutes a ground for optional refusal only, is it possible to avoid it by reciprocity? If exceptions exist, what are they, e.g., the existence of the right to re-trial?<br/><br/>g. What are the specific human right requirements under the law of the other country and will the legislation, judiciary and prisons in East Timor meet all of them? Is it possible to produce sufficient proof of that?<br/><br/>h. What are the precise provisions on the Rule of Speciality under the law of the other country?<br/><br/>i. Whether the other (rendering) country will review the extradition request or the final judgment against the extraditee to determine if it is manifestly unfounded?<br/><br/>j. Is there a possibility that the other country might refuse extradition as unreasonable based on humanitarian reasons such as the age, health or other circumstances of the wanted person, or in view of other special conditions?<br/><br/>k. What are the necessary supporting documents to the formal request for extradition (a full, explicit and exhaustive list) and how must they and the extradition request be authenticated?<br/><br/>l. Is it possible that the extraditee, while under provisional or full arrest, might be released, and what can be done to avoid his release?<br/><br/>m. Is accessory extradition possible for a non-extraditable offence, along with the main and extraditable offence, and, if so, under what conditions?<br/><br/>n. Who decides on admissibility of extradition cases, the central authority or the court?<br/><br/>6. What might be expected after the petition for international search and provisional arrest of the wanted person has been circulated worldwide through the Interpol channels?<br/>After the circulation of the petition worldwide, The “National Central Bureau” of Interpol in any foreign country is expected to take the information concerning the identity of the person and the criminal offence (s) for which s/he is being sought, from the international search list and by including this information, put him/her on the national search list of its country.<br/><br/>Once the law enforcement authorities in such a country within the Interpol’s network find the wanted person as anyone declared for search and arrest, if caught, they immediately put him/her under police arrest (usually, for up to 24 hours) and inform their Interpol of the apprehension of that person who has been sought through them. If the country in question extradites only under international treaties, and therefore, no extradition proceedings at the request of East Timor can take place, the person will be released. Otherwise, if the other country extradites under the conditions of reciprocity the Interpol Bureau in that country is likely to ask the East Timorese Interpol for: (i) confirmation of the petition for international search and provisional arrest of the person and (ii) a promise for reciprocity on behalf of the authorities of East Timor. If the other country’s Interpol receives, within the time period of the police arrest there, positive answers to both of these two questions, it will forward the case (usually through the prosecution office) to its court for warrant of provisional arrest of the person. Subsequently, if the court does not find any obstacle (e. g. that country does not extradite its nationals and the apprehended person is such a national), it will issue warrant of arrest pending the arrival from East Timor of the official request for the extradition of the person. The provisional arrest is most often up to 40 days. However, if its period and thus, the deadline for the submission of the request have not been understandably indicated in the decision of the court, the East Timorese Interpol shall ask its counterparts in the other country for clarification on the issue.<br/><br/>In any case, it is much better and safer to directly obtain information from the other country and avoid using the Interpol channel. For the purpose of efficient exchange of information about international judicial co-operation, a lot of countries have designated contact points. Most often they are public prosecutors or judges. Thus, whenever the public prosecutor in East Timor is in need of any specific current information or has any question about the law of the other country, s/he shall not hesitate to identify its contact point for international judicial co-operation by searching in Internet, contact him/her and simply ask him/her.<br/><br/>7. What to do after the provisional arrest?<br/>Once the provisional arrest of the wanted person has been granted in another country, the public prosecutor in charge of the case has to receive and study, as quickly as possible, the decision of the arrest. The decision determines the deadline for the submission of the official request for extradition with the supporting documents (which coincides with the time period of the arrest), the possibility and conditions of its extension (which is very rare), and also the specific requirements with respect to documentation which will be sent (what specifically, in what language, whether and how to authenticate it, etc) and the channels of communication (which is never Interpol). For this purpose it is also advisable to find (for example, on Internet) the domestic extradition law of the other country. The extradition request in particular shall, inter alia, contain: a statement when lapse of time would occur, at the earliest, and a promise of reciprocity that is to say, readiness to consider, in turn, extradition requests which would come from the requested country regardless of the absence of any extradition treaty between East Timor and that country. A reference to Article 2.2 of the Indonesian Law on Extradition in conjunction with S. 3.1 of UNTAET Regulation No. 1999/1 and Section 165 of the East Timorese Constitution shall be made. Besides (since the Rule of Speciality is not explicitly provided for in ILE), the extradition request shall also contain a declaration that once surrendered to East Timor, the extraditee shall be prosecuted, tried and/or punished only to the extent (within the limits) of what s/he has been extradited for, and not for any other act or omission which has been committed by him/her prior to his/her surrender. The East Timorese arrest warrant of the person sought, a full and reliable information for his/her identification, a good description of the criminal offence (s) s/he is wanted for, a summary and certified copies in support of the description, and also a copy of all applicable East Timorese substantive criminal law provisions relevant to the case [namely, in relation to (i) the offence itself, and (ii) other relevant facts which might affect the criminal responsibility and/or punishment of the person], shall be attached to the extradition request. Lastly, there should be a request for the delivery to East Timor of the items (property) found in the possession of the wanted person, even if s/he dies or escapes in the meantime.<br/><br/>Pursuant to Article 44 of ILE in conjunction with S. 3.1 of UNTAET Regulation No. 1999/1 and Section 165 of the East Timorese Constitution [see also S. 4. 1 (b) of the Decree of the East Timorese Government No. 3/2003], the Minister of Justice must sign the extradition request, at the request of the General Prosecutor (it shall be attached too) on behalf of the President of East Timor, the extradition request. The request must be addressed to the Minister of Justice of the other country and dispatched through the diplomatic channel (from the Foreign Minister of East Timor to the Foreign Minister of the other country).<br/><br/>After the official request for extradition with all supporting documents has been delivered to the other country and in case of positive development, the full arrest of the wanted person is ordered there, the competent judicial authorities will probably require additional information from East Timor. If that country is not very experienced in extradition relations, it may invite the East Timorese prosecutor to assist it in this, especially in court for the extradition proceedings there.<br/><br/>8. How active extradition ends?<br/>Once the final decision on the requested extradition is rendered, the authorities of the other country will notify their counterparts in East Timor of the decision, usually through Interpol. If extradition has been refused, the wanted person is released immediately unless there are other grounds for his detention.<br/><br/>If the granted extradition is not postponed, the Central Authority for international judicial co-operation in the requested country will inform East Timor (through diplomatic channels and also via Interpol) of the positive decision and about the surrender scheme (including the time, place and manner of surrender of the extraditee). Interpol is given a copy of the court decision and a document reflecting the terms of the handover of the extraditee. These must be delivered to the police officers of East Timor who are to assume custody of the extraditee. If the extradition granted is postponed, the other country organizes the handover in the same manner as soon as the obstacle for it is over, i. e. the person has been tried for another offence or has served his/her effective (not suspended) punishment for it.<br/><br/>Customarily, the foreign police take the extraditee to an international airport for a flight to the receiving country. Transfer of custody occurs at the door of the airplane transporting the extraditee out of the country. Occasionally, the rendering police may at the expense of the receiving country handle all aspects of the transportation to the requesting country. The person must taken no later than 30 days after the appointed date. Otherwise, if the fugitive is not taken within a month after the appointed date, he must be released and cannot be surrendered later for the same offence.<br/><br/>If within that one month the fugitive dies or acquires nationality of the requested country, or the requesting country revokes his arrest or judgment or withdraws its request for extradition or declares that it will not take custody of him (for another reason or without giving any reason), the competent agency of the other country will issue a ruling for termination of the procedure and immediate release of the person, if there are no other grounds for his detention. In the exceptional case where the fugitive succeeds in acquiring nationality of the rendering country, it will not be a solution to send to that country a file of the materials against him for institution of criminal proceedings for the same offence, unless it is established that the other country can apply its criminal law to it. This will hardly be possible. Thus, it is generally much better to keep the criminal case and try to extradite the person from a third state.<br/><br/>After the escort and arrival of the extraditee in East Timor, s/he is subject to the Rule of Speciality as the Minister of Justice of this country has promised. Thus, if prior to his/her surrender the extraditee had committed other criminal offences, for which extradition was not granted, s/he cannot be prosecuted, tried and/or punished. In short, the extraditee obtains procedural immunity for all such offenses. However, s/he may be prosecuted, tried and punished for his/her offences committed after his/her escort and arrival in East Timor.<br/><br/>Extradition – Basic Concepts<br/>Common Law –vs– Civil Law countries<br/><br/>II. Letters rogatory to another country (obtaining evidence abroad)<br/><br/>A. The Idea of Letters Rogatory<br/>Any national judicial official who has the powers to undertake investigative actions and thus obtain valid evidence admissible in court is confined in his/her work to the territory of his/her country. S/he cannot obtain any evidence in another country. His/her work in another country could produce only information, which lacks any judicial significance and effect. That is why, if some evidence from another country is needed, it would be necessary to request its appropriate judicial authorities to undertake those specific investigative actions, by means (through) which the evidence may be gathered.<br/><br/>Thus, if an investigator or judge in East Timor needs to interrogate someone, s/he must summon that person to appear before him/her in his/her office or in court respectively, regardless of whether the person is in the country or abroad. If the witness lives in another country, it is likely s/he will not come to East Timor. This reluctance may be based on some generalized fear or misapprehension. Moreover, persons summoned to appear in East Timor in particular may also be reluctant because there is no clear provision in East Timorese law, which grants them the normal immunity as witnesses or expert witnesses summoned from another country. The existing law in East Timor does not recognize the principle of salvus conductus (free passage), which grants such persons immunity from prosecution for previously committed criminal offences or serving previously imposed sentences. Hence, the only reliable way to ensure the interrogation of the person and performance of other necessary investigative actions abroad in this atmosphere of distrust is to prepare and dispatch a letter rogatory. There is no other, alternative way to produce valid proof, which is admissible into evidence in court. Interpol, law enforcement authorities and agents of the Foreign Ministry can only produce information, which lacks any judicial significance, and shall never be directly used for the purpose of obtaining evidence from another country.<br/><br/>The outgoing letter rogatory and active extradition are the most important methods of active mutual legal assistance in criminal matters. However, when compared to active extradition, the requesting country is “active” in a different way. In extradition, the requesting country is active in its attempt to physically obtain the person sought. After this has been accomplished, there are usually no problems with the validity of the proceedings against him. The situation presented by outgoing letters rogatory is just the opposite. Usually, the requesting country easily gets the materials it wants. However, if those items have not been gathered properly as evidence, these materials, regardless of their necessity, might not be admissible in any event. Such items, if inadvertently admitted, may compromise the validity of the proceedings for which they were obtained.<br/><br/>B. The Peculiarities of Letters Rogatory<br/>Other countries have strict rules about the prerequisites for obtaining international legal assistance generally, and foreign letters rogatory, in particular. Thus, if the country of interest to East Timor does not grant any mutual legal assistance without a treaty, nothing can be done until there is one. However, most countries proceed with foreign letters rogatory under conditions of reciprocity. Wherever this is the case, reciprocity should be invoked and declared in the letter rogatory as suggested for active extradition.<br/><br/>Where international legal assistance from the other country is generally possible, the next question becomes whether there are any obstacles in its law to granting such assistance to another nation. Most countries provide some grounds for the refusal of assistance in their domestic law. Customarily, these are because of the possibility of prejudice to the sovereign, security, public order or other essential interests of the requested country. It must be emphasised that the phrase "essential interests", sometimes called “vital interests” refers to the interests of the requested country, not the interests of individuals. Economic interests may, however, be covered by the concept of “essential interests”. It is possible that any assistance to investigate political, military or fiscal offences, or offences that carry the death penalty might be considered endangering essential interests not only of the accused individual but the requested country as well.<br/><br/>If there are no other obstacles to obtaining international legal assistance from the other country, then the specific requirements for foreign letters rogatory under its law must be ascertained. A letter rogatory must meet the following criteria.<br/><br/>a. A letter rogatory must enclose: (i) the full name of the person to be involved in the execution of the letter rogatory as witness, accused or in another capacity together with all the information available for his/her identification, and his/her present address (other countries do not search for witnesses or even for accused which are not to be extradited); (ii) a questionnaire for the interrogation of the person or/and an exhaustive list of items sought for search and seizure, tasks for their expert evaluation; (iii) a recital of pending criminal proceedings: (iv) the name of the investigated criminal offence and a short description of all those alleged facts (not more than two pages) which correspond to the elements of the offence in accordance with its legal description, and (v) the text of the specific legal provision which envisages the offence.<br/><br/>If no criminal proceedings have been instituted, only police information, which cannot be admitted in evidence in court, may be requested. If there is no description of the facts related to the offence, the request will most probably be rejected. This description (together with the applicable provision) is necessary so that the other country can determine whether there is dual criminality, that is, the investigated offence is a crime both under the law of the requesting and requested country.<br/><br/>Under the law of some countries (e.g. Austria, Nigeria) dual criminality is a general requirement for all incoming letters rogatory. This means that the facts that form the basis of any request for legal assistance must also be punishable as a criminal offence in that country. Thus, these countries approach letters rogatory in the same manner as extradition. Most countries no longer use this approach and, as such, passive mutual assistance is not subject to the rules of extradition. Thus, dual criminality is a general requirement for extradition only and not for letters rogatory. Usually dual criminality is required only for search and seizure of property, lifting bank secrecy and opening bank accounts.<br/><br/>b. A letter rogatory should request the performance of certain investigative actions. It should not simply seek clarification of certain facts, which are relevant to the criminal case in East Timor. No one should send a request to “carry out all action necessary to get at the truth.” Such a request relinquishes control over the investigation. The organisation should remain in the hands of competent East Timorese judicial authorities.<br/><br/>- When, for example, interrogation (questioning) is requested, it should be stated in what capacity the individual is to be interrogated, i. e. as an accused, witness or/and expert-witness). A list of questions or written interrogatory (questionnaire) should be prepared. This list might be viewed in some countries as restrictive and not indicative only. This issue should be determined in advance.<br/><br/>- It is noteworthy that the common expression "executing searches and seizures" might be used in the sense of searching places, premises, vehicles etc. and compulsorily acquiring evidential material or information found there. It also must be interpreted now to cover search and seizure in a technological context e.g the search of computers and computer systems. However, this expression alone should not be used in requests for assistance, particularly in cases where the requesting and requested States have different legal systems. The expression "search and seizure", can have different meanings in different jurisdictions. It is much better to describe also the result sought to be achieved rather than a legal methodology only, such as "search and seizure", by which the result is to be achieved.<br/><br/>- If interception of telecommunications is requested the letter rogatory should also contain the following specific information: (i) a description, as precise as possible, of the telecommunication to be intercepted; (ii) an indication why the purpose of the request cannot be adequately achieved by other means of investigation; (iii) an indication that the interception has been authorized by the competent authority of the requesting country; (iv) an indication of the period of time during which the interception is to be effected.<br/><br/>Since there is no international treaty between East Timor and any requested country, all actions are done under conditions of reciprocity. Crossover authorities should consult the national law of the other country and determine the permissible investigative actions under it before making a request.<br/><br/>In most cases, East Timorese magistrates (investigators, prosecutors, judges), defence lawyers, and other interested persons may be present at the execution of the letter rogatory and attend the requested investigative actions. Usually, none of them are allowed under the law of the requested country to take part in the investigative actions. They may not ask questions or obtain evidence. Pursuant to local procedural law (which is the only applicable one), this is the duty of a commissioned magistrate of the requested country. The East Timorese magistrate is not allowed to act in place of the commissioned magistrate of the requested country in charge of the execution of the letter rogatory. If s/he does, this will be in violation of the applicable law and the selected materials will not be admissible in evidence in East Timor. The letter rogatory is executed under the criminal procedure law of the requested country. East Timorese magistrates should be prepared for the general objection, often used, that the procedure there is incompatible with criminal procedure in East Timor. The simple response is that it does not matter, because it is a separate proceeding and not part of the domestic criminal proceedings in East Timor.<br/><br/>c. There are certain requests East Timorese authorities should not make. They should not ask that the other country hand over possession of items in favour of individuals or entities in East Timor. Any item received may be used for physical evidence only, and when it is no longer needed as evidence for the criminal case in East Timor, it must be returned to the requested country without delay, unless that country has declared expressly that it is not interested in the return of the item.<br/><br/>There are no grounds that justify the interruption of possession by an individual over an item. This means that authorities cannot deprive the possessor of his property rights while granting international assistance (legal or police) especially when executing letters rogatory. International assistance between countries must be in compliance with civil law and above all, property law. While granting letters rogatory, no action should be taken to settle a possible civil law dispute or predetermine its result.<br/><br/>Lastly, unlike domestic criminal procedure, the defendant has only the opportunity but not the right (privilege) to be represented by defence counsel at the execution of the letter rogatory in the requested country. The judicial authorities of the requested country have no correlative obligation to ensure the presence of defence counsel at the execution of the letter rogatory and East Timorese authorities may not insist on that presence. At most, the requested country will only state the date and the place of execution of the letters rogatory. Officials and interested persons may be present if the requested party consents. Thus, the magistrate who executes the letter rogatory will not adjourn the requested investigative actions if these persons do not attend the execution and in spite of their absence, the court in East Timor is expected to consider the selected proof valid.<br/><br/>d. Finally, the channels of communication with the other country must be identified. Like most other requirements for letters rogatory, the requirements related to their possible channels of communication are more flexible than those for extradition requests. Thus, in cases of urgency, it is widely accepted that letters rogatory may be addressed directly by the judicial authorities of the requesting country to the judicial authorities of the requested country, avoiding their Ministries of Justice.<br/><br/>There are also some other recommendations about the letter rogatory itself. Simple and clear language should be used. Use as many standard words and phrases as possible. Avoid technical language and unnecessary information that may cause confusion. In general, the letter rogatory is formally addressed to the Ministry of Justice of the requested country, but its “Appropriate Judicial Authorities” are likely to be mentioned as they are asked to perform certain investigative actions. The essential elements of a letter rogatory are:<br/><br/>• A declaration that the request is made in the interests of justice;<br/>• The type of pending case for which assistance is necessary (criminal);<br/>• A brief synopsis of the case, including a description of the specific offence(s) under investigation;<br/>• The nature of the assistance required (e. g. compel testimony or production of material evidence under the law of the requested country);<br/>• Name, address and other identifiers of the person(s) in the requested country from whom evidence is to be compelled;<br/>• List of questions to be asked. A warning relating to perjury under East Timorese Law should not be inserted since the interrogation is under the law of the requested country and before questioning starts, the interrogated person will be warned about perjury under the law of that country;<br/>• List of documents or other material evidence to be produced; and<br/>• A statement expressing a willingness to provide, in turn, similar assistance to the judicial authorities to the requested country.<br/><br/>It is the general international practice to execute letters rogatory as quickly as possible. However, postponed execution is not ruled out. The requested country may postpone action on a request if such action would prejudice investigations, prosecutions or related proceedings by its authorities. For example, where the requesting country has sought to obtain evidence or witness testimony for purposes of investigation or trial, and the same evidence or testimony is needed for use at a trial that is about to commence in the requested country, the latter would be justified in postponing providing assistance. Where the assistance sought would otherwise be refused or postponed, the requested country may instead provide assistance subject to conditions. If the conditions are not agreeable to the requesting country, the requested country may modify them, or it may exercise its right to refuse or postpone assistance. In any event, the requested country usually attempts to act in a fair and open manner when such issues arise.<br/><br/>Finally, under the generally accepted Rule of Speciality, East Timorese authorities must promise to use the information transferred to them by the other country solely for the purpose for which it was originally given. In particular, this means that the requesting authority in East Timor is not allowed to transfer materials or information obtained in the course of a mutual assistance proceeding to a different authority. In addition, the East Timorese judiciary is, in most instances barred from using the materials or information obtained by the request in a criminal case not named in the letter rogatory without the prior consent of the requested country.<br/><br/>Extradition and Letters Rogatory - Basic Differences<br/>[from the Requesting Country's Point of View]<br/><br/>III. New European developments in mutual legal assistance<br/>1. The latest European developments in mutual legal assistance are reflected mainly in the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 8/11/2001). This Protocol allows the application the criminal procedure law of the requesting country to the execution of its letter rogatory (Article 8) and regulates trans-border executed letters rogatory, namely, it allows execution by video conference (Article 9) and telephone conference (Art. 10). It also authorizes cross-border observations (Article 17). The Protocol envisages also controlled deliveries (Article 18), covert investigations (Article 19), which often involve trans-border execution, and the formation of the so-called Joint Investigation Teams (Article 20).<br/><br/>a. Video and Telephone Conferences (or bridges) are an effective and necessary device when a person is in one country and must appear as an accused, witness or expert witness before the judicial authorities of another country, but it is not desirable or possible for the person to appear in person. "Not desirable" could apply, for example, to cases where the witness is very young, very old or in bad health; while "not possible"could apply, for example, to cases where the witness would be exposed to serious danger if he appeared in the requesting country. The requested country has the duty to:<br/><br/>- summon/notify the accused, witness or expert concerned of the time and the venue of the hearing;<br/>- provide an interpreter;<br/>- ensure the identification of the accused, witness or expert.<br/><br/>It is expected that the national law of the country where the witness is actually present and testifies will apply in the same way as if the hearing had occurred in a procedure in the country. This will abort any ungrounded refusals to testify and protect against any false testimony.<br/><br/>When the impossibility to personally appear in the territory of another country to testify is due to the fact that the witness is detained in the territory of the requested country, Article 3 of the Second Additional Protocol provides for a solution. It envisages the case where a prisoner whose personal appearance for evidentiary purposes (including confrontation), other than for standing trial, is wanted by the requesting country. In that case the person shall be temporarily transferred to the requesting territory, provided that s/he will be sent back within the period stipulated by the requested country. Transfer may be refused if:<br/><br/>• the person in custody does not consent;<br/>• his presence is necessary at criminal proceedings pending in the territory of the requested country; or<br/>• transfer is liable to prolong his detention.<br/><br/>Like all other such witnesses, this person is granted salvus conductus (free passage) under Article 12 of the European Convention on Mutual Legal Assistance in Criminal Matters.<br/><br/>b. Cross-border Observations, Controlled Delivery (of goods or money) and Covert Investigations do not to include police or other forms of non-judicial co-operation under the aforementioned Protocol, all of these are forms of mutual legal assistance. They are designed to produce valid proof for the court of the requesting country. A “cross-border observation” involves a judicial officer who is conducting a criminal investigation and has the powers to gather admissible evidence. During his/her criminal investigation, he keeps a suspect under observation in his/her country who is presumed to have taken part in a criminal offence to which extradition may apply, or a person who it is strongly believed will lead to the identification or location of such a person. Under these conditions, the judicial officer is authorized to continue his/her observation in the territory of another country where that nation has authorised cross-border observation in response to a previously submitted request. The observation is conducted under the law of the requested country.<br/><br/>Under Article 1 (g) of the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, 1988), "controlled delivery" means the technique of allowing illicit or suspect consignments of goods or money, or items substituted for them, to pass out of, through or into the territory of one or more states, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences. This definition, while providing a general guideline, does not entirely address the concept used in the discussed protocol. In particular, it does not necessarily cover offences such as smuggling of aliens or trafficking in human beings. These offences are also involve a controlled delivery and would likewise be carried out under the law of the requested country.<br/><br/>“Covert investigations” under the Protocol are conducted as the result of an agreement between two countries. They agree to assist one another in the conduct of the investigation into crime by judicial officers acting under a covert or false identity. The parties co-operate to ensure that the covert investigation is planned and supervised. They will also make arrangements for the security of the officers acting under covert or false identity. Covert investigations are conducted according to the national law and procedures of the country where the covert investigation occur.<br/><br/>As far as applicable law is concerned, the Protocol lacks flexibility. No doubt, the behavior of any officer in another country must be in compliance with the administrative regulations of that nation. The procedural regulations cause problems because they govern the essential work of the officer. This officer sometimes is required to act on his/her own in a foreign territory and take secret photographs, perform bugging and other covert actions for which he has to prepare protocols. Obviously, the officer may encounter great difficulty accomplishing this work and complying with the procedural regulations of the other country. The validity of any proof he produces will be highly contentious and in almost all cases inadmissible.<br/><br/>Thus, the only effective solution is to stipulate that, generally, secret actions within the framework of Cross-border Observations, Controlled Delivery and Covert Investigations are to be performed under the law of the requesting country. These forms of mutual legal assistance should not have their own special regime, which excludes them from the general principle set forth in Article 8 of the same Protocol which allows the application of the criminal procedure law of the requesting country for execution of its letter rogatory.<br/><br/>c. It must be mentioned that Art. 4 of the Protocol provides for direct communications between judicial authorities of different countries, not only in cases of urgency but generally, in all cases. Urgent cases only invoke the possibility of use of the Interpol channel.<br/><br/>Article 4, Para 1 and 7 of the Protocol state:<br/><br/>“Requests for mutual assistance … shall be addressed in writing by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party and shall be returned through the same channels. However, they may be forwarded directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party and returned through the same channels. In urgent cases … it may take place through the International Criminal Police Organisation (Interpol).”<br/><br/>Finally, this Article opens the way for the use of telecommunications in the transmission of requests and other communications.<br/><br/>Thus far, the practice of direct communications between judicial authorities of different countries shows that some countries have instituted additional requirements to use that channel. For example, France and Spain require, under Article 15 of the European Convention on Mutual Legal Assistance in Criminal Matters, that when the letters rogatory are addressed directly by the judicial authorities of the requesting party to the judicial authorities of the requested party, a copy thereof shall at the same time be communicated to the Ministry of Justice of the requested party. This covers not only cases of urgency, but also requests for investigation preliminary to prosecution. It might be expected that these countries will preserve that requirement until direct communications between judicial authorities of different countries become a general rule.<br/><br/>d. Lastly, under Article 20 of the Second Additional Protocol by mutual agreement, the competent authorities of two or more Parties may set up a joint investigation team for a specific purpose and a limited period, which may be extended by mutual consent, to carry out criminal investigations in one or more of the Parties setting up the team. The composition of the team shall be set out in the agreement. A joint investigation team may, in particular, be set up where:<br/><br/>a Party’s investigations into criminal offences require difficult and demanding investigations having links with other Parties;<br/><br/>a number of Parties are conducting investigations into criminal offences in which the circumstances of the case necessitate coordinated, concerted action in the Parties involved.<br/><br/>Such teams have inherent procedural powers to directly obtain evidence form any participating country, which then is valid in the court of any team Party. Thus, Parties avoid exchange of letters rogatory.<br/><br/>2. There are two concepts of International Criminal Law defined as “the legal discipline that deals with the relationship between the right to punish and the sovereignty of states” [Claude Lombois]. According to the first notion, namely protecting states’ interests (under the principle of “every man for himself”), the foundation for criminal law and its implementation is primarily to protect the interests of the state. Creating offences, then defining the limits of criminal law in a particular case, is part and parcel of the same approach, notably to describe the behavior, which, according to the circumstances of time and place, violate the state’s vital interests and shall be as such punishable under criminal law. From this emerges the need for International Judicial Co-operation (assistance) in criminal matters, to enable each state to exercise in practical terms the authority it has given itself in relation to action occurring outside its border or by persons not in its custody.<br/><br/>According to the second conception of International Criminal Law, namely the universality of the right to punish, the offence is a violation of universal values and states are united in punishing it. The basis for their criminal jurisdiction is an international obligation to collaborate in the necessary punishment of offences. Criminal law thus first appears as an obligation and only later as an exercise of power. International Judicial Co-operation in criminal matters (assistance) is an act of solidarity toward a common goal. Generally speaking, it is the first concept that prevails. It is important to note that the second concept is gaining acceptance in Europe, particularly within the European Union.<br/><br/>[1] Ph D [Criminal Law]. Former United Nations Prosecutor with the Serious Crimes Unit, Office of the Prosecutor-General, Democratic Republic of East Timor; Present Head International Trainer, United Nations Mission in Kosovo (UNMIK) Department of Justice, Kosovo Special Prosecutor’s Office, Pristina.Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-30958264759546070842012-05-24T04:32:00.000-07:002013-05-19T01:08:04.007-07:00The Rule of Law: Theoretical, Cultural and Legal Challenges forTimor-Leste <p style=" margin: 12px auto 6px auto; font-family: Helvetica,Arial,Sans-serif; font-style: normal; font-variant: normal; font-weight: normal; font-size: 14px; line-height: normal; font-size-adjust: none; font-stretch: normal; -x-system-font: none; display: block;"> <a title="View The Rule of Law: Theoretical, Cultural and Legal Challenges forTimor-Leste on Scribd" href="http://www.scribd.com/doc/142327310/The-Rule-of-Law-Theoretical-Cultural-and-Legal-Challenges-forTimor-Leste" style="text-decoration: underline;" >The Rule of Law: Theoretical, Cultural and Legal Challenges forTimor-Leste</a></p><iframe class="scribd_iframe_embed" src="http://www.scribd.com/embeds/142327310/content?start_page=1&view_mode=scroll" data-auto-height="false" data-aspect-ratio="undefined" scrolling="no" id="doc_68324" width="100%" height="600" frameborder="0"></iframe>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-41097886394017875192012-05-24T04:29:00.000-07:002013-05-18T17:30:35.439-07:00Handle with Care: Private Security Companies in Timor-Leste<a href="http://easttimorlawjournal.files.wordpress.com/2012/05/parker_private_security_companies_pdf.pdf">Handle with Care: Private Security Companies in Timor-Leste</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-58024401435415763112012-05-24T04:27:00.000-07:002013-06-09T12:54:37.623-07:00The Case to Intervene and Stop East Timorese Killing ‘Witches’Original Citation: 2009 ETLJ 7 The Case to Intervene and Stop East Timorese Killing ‘Witches’<br />
<br />
Wright's fascinating article published in the East Timor Law Journal documents recent cases of killings of alleged witches in East Timor as instances of traditional justice (<a href="http://easttimorlawjournal.blogspot.com.au/2012/05/witchcraft-and-murder-in-east-timor.html">Witchcraft and Murder in East Timor 2009 ETLJ 6</a>). He cites the “anti-democratic” and “maladaptive” nature of such killings as evidence for the claim that outsiders should sometimes intervene and stop certain cultural practices.<br />
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However, as an anthropologist who is unsure about intervening in other societies, I would like to analyse his case to intervene and stop ‘witch’ killings. In this short essay, I recap Wright’s argument and then point to three areas where the case to intervene could be strengthened. First, I point to complexities in the anthropological position on relativism. Second, I indicate problems with intervening. Last, I suggest the need for criteria for a legal system which are not cultural specific. Rather than disproving the case to intervene and stop witch killings, these three objections indicate ways in which the case to intervene could be strengthened.<br />
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Wright documents four cases of attacks of alleged witches in East Timor: a 1999 torture of a woman; the killing of three ‘witches’ in 2008; an anecdote about a man advised by a United Nations police officer to deal with witchcraft in the ‘traditional’ way, and who subsequently killed the ‘witch’; and an anecdote about hot coals being fatally placed on a ‘witch’s’ back for punishment.<br />
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Wright finds these attacks “draconian” and “anti-democratic”. He appears to be targeting “overly relativist anthropologists” who he implies would support these attacks. Wright criticises “many anthropologists who lack a comprehension of the concepts of democratic secular law and justice” and “are ardent supporters of traditional justice systems”. He implies that there is no role for traditional justice such as ‘witch’ killing. Nevertheless, he feels that traditional justice “will play an important role” if “we know how to take advantage” of its “positive aspects”. The grounds for this claim seem to be established if the traditional legal system is open, accessible, not draconian, respecting of human rights, and is secular and democratic. Wright’s argument that one can judge and also intervene in another society thus runs against relativism. I suggest three weaknesses in this case in the following.<br />
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Wright critiques many anthropologists for being relativists who fail to understand democracy. However, relativism has been the subject of persistent debate in anthropology with regard to two issues.<br />
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First, with regard to writing about or recording culture, anthropologists have debated whether they should merely describe (if that is possible) other cultures, or prescribe what they should do. Battle lines have been drawn over issues such as the wearing of a veil by Muslim women, clitorectomy and other forms of genital mutilation, the Hindu sati, cannibalism, and so on. To quote one undergraduate text book, “There is no easy answer to the question of when or if it is proper to judge the beliefs and practices of others to be right or wrong”. The same text also warns against the dangers of the “relativist fallacy”—“the idea that is impossible to make moral judgments about others” (Robbins 1997:11-12).<br />
<br />
Second, if moral judgments are accepted, it is debated whether outsiders (such as anthropologists often are) have the right or responsibility to tinker with society. This is the great debate as to whether anthropology should be “pure” (for knowledge’s sake) or “applied” (achieving practical results) (Keen 1999:33-5). In view of this, I suggest that it is not simply the case that “many anthropologists” misunderstand secular law or are ardent supporters of traditional justice systems, rather, there is much debate and subtlety with which they approach the issue of relativism. As the debate regarding relativism is well documented in anthropological writings, I will focus on problems with intervening specific to ‘witch’ killings in Timor Leste.<br />
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One problem with stopping witch-killing is that it can cause consternation for local people and upset the balance of relations within the community. This has been the experience of some colonial and post-colonial regimes. For the Lozi of Northern Rhodesia (Zimbabwe) in the 1940s, sorcerers…were “patent criminals protected by British law” (Gluckman 1955:159). The Bimin-Kuskusmin of PNG perceive that the nearby Oksapmin people attack them with witchcraft, yet they “can no longer stage revenge raids against Oksapmin, because the government has outlawed warfare” (Zelenietz 1981:9).<br />
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In Cameroon, “the State appeared as the objective ally of the witch (Rowlands and Warnier 1988:127). This was also observed among the Navaho: “white courts refuse to acknowledge the existence of witchcraft…Hence, “witches” are in a highly favourable position to practice indirect extortion—they are feared and yet almost immune from punishment, for white governmental agencies exert every force to prevent the killing of witches” (Kluckhohn 1944:116).<br />
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The ‘protection’ of the perceived sorcerer or witch creates problems. This can be seen among the Korowai, who live to the east of Timor Leste, in New Guinea. Bereaved survivors of witch attacks, until recently ambushed and killed the alleged witch outright. Otherwise they took the witch to a third-party who would assemble to execute the witch and eat his body. The consumers of the witch ‘transferred’ the witch back by hosting a sago-grub feast and providing brides to the witch’s people, to paraphrase Stasch (2001). Attempts by Indonesian police to stop this interrupted this exchange. For the Korowai, giving up this homicide at the state’s behest “is tied to recognition of a larger transformation in the very make-up of the world” (Stasch 2001:47).<br />
<br />
Tinkering with one element of the system may cause larger, unintended, transformations. Intervening also risks denying indigenous people the ‘right’ to act according to their own will. Missionaries, colonial and neo-colonial states have attempted to eliminate witchcraft beliefs and recriminations (as well as many other apparently abhorrent cultural practices).<br />
<br />
Timor Leste’s struggle for freedom has more often than not been an attempt to stop foreigners telling its population what to do. Of course, the missionaries, colonisers, and neo-colonisers might have been right and the anti-colonialists wrong in some cases; but if this is to be asserted, the grounds for distinguishing what is right and wrong must be established. Such intervention can also come from within societies.<br />
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Wright cites Xanana Gusmao’s antipathy to witchcraft and other feudal elements of traditional laws. It could be argued that this socialist critique of the killings of witches is typical of the modernising ideas of ‘indigenous’ elites in post-colonial societies. Indeed the first case of witch killing Wright refers to led to prosecutions of the alleged witch killers.<br />
<br />
However, even this kind of intervention can be harmful. For instance, government attempts to modernise and assimilate indigenous peoples has caused suffering and hardship throughout the world (Gomes 2007:2-4). This is part of a wider problem of states’ well-meaning attempts to modernise and improve populations with devastating results (Scott 1998). Before intervening, we should be sure that it would not damage Timor Leste’s societies or that it would damage Timor Leste’s societies but should be undertaken anyway.<br />
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The final problem with the case to intervene and stop East Timorese killing witches, is that the criteria Wright provide are themselves susceptible to a relativist critique. He advocates, for example, the criterion of “non-draconian”, implying a good legal system is not draconian. For some Aboriginal people living in traditional communities, the formal justice system which incarcerates them (often with fatal results) is more draconian than their system, which might resort to spearing an offender. For many Whites, traditional Aboriginal justice of spearing is draconian.<br />
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Another problematic criterion for Wright’s legal system is “democratic”. Killing ‘sorcerers’ where I did fieldwork was the wish of almost all local residents - often the ‘sorcerers’ own family, friends, and neighbours. In the sense that it is the will of the majority, it is thus democratic. If a trial by jury were established, I strongly suspect that ‘sorcerers’ would be similarly condemned. I suspect that most villagers in Timor Leste would also wish to kill witches. To the extent that this is true, it appears that democracy is not antithetical to witch killings.<br />
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It might be that we are justified in morally judging and intervening in other societies. I suggest that engaging with the long debate over relativism in anthropology would be a good place to begin this debate. In any case, we should be wary that intervening in societies, even with the best of intentions, most often has a damaging effect.<br />
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Finally the criteria we assert for changing a society - such as making the legal system “democratic” and “non-draconian” - should be defined in a manner which is not culturally specific. The case to intervene and stop witch killings in East Timor could be strengthened by taking this step.<br />
<br />
References<br />
<br />
Gluckman, Max 1955 The Judicial Process among the Barotse of Northern Rhodesia. Manchester: Manchester University Press.<br />
<br />
Gomes, Alberto G 2007 Modernity and Malaysia: Settling the Menraq forest nomads. London: Routledge.<br />
<br />
Keen, Ian 1999 The Scientific Attitude in Applied Anthropology. In Applied Anthropology in Australasia. S. Toussaint and J. Taylor, eds. Pp. 27-59. Nedlands WA: University of Western Australia Press.<br />
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Kluckhohn, Clyde 1944 Navaho Witchcraft. Boston: Beacon Press.<br />
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Robbins, Richard H 1997 Cultural Anthropology: A Problem-Based Approach. Itasca, Illinois: F.E. Peacock.<br />
<br />
Rowlands, Michael, and Jean-Pierre Warnier 1988 Sorcery, Power and the Modern State in Cameroon. Man 23(1):118-132.<br />
<br />
Scott, James 1998 Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press.<br />
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Stasch, Rupert 2001 Giving up Homicide: Korowai Experience of Witches and Police (West Papua). Oceania 72(1):33-52.<br />
<br />
Zelenietz, Marty 1981 Sorcery and Social Change: An Introduction. Social Analysis 8:3-14<br />
<br />
<br />
<br />
Dr Nicholas Herriman<br />
Postdoctoral Research Fellow<br />
Centre of Southeast Asian Studies<br />
Monash Asia Institute<br />
Monash University<br />
http://arts.monash.edu.au/mai/staff/nherriman.php<br />
<br />
<br />
First published on the East Timor Law Journal on 31 May 2009Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-71524568318471445952012-05-24T01:27:00.000-07:002013-06-09T12:57:33.058-07:00Witchcraft and Murder in East Timor<b>2009 ETLJ 6 Witchcraft and Murder in East Timor</b><br />
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In staunchly Catholic East Timor, it is anomalous that there persists a strong belief in witchcraft. In September, 2000, this first came to focus the attention of the judicial system when four men were tried for allegedly torturing and killing an elderly woman accused of witchcraft.<br />
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The facts of that case came to light in the court in Baucau, East Timor's second largest city. A 62-year-old woman was murdered in the easternmost region of Los Palos in December, 1999. According to the prosecution, the woman was tortured and left for dead by four men after having been accused of killing children by witchcraft.<br />
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On 7 January, 2007, three women accused of being witches were killed and burned along with their house in East Timor. The three women, aged 70, 50 and about 25, were killed at Maubaralisa (subdistrict Maubara, district Liquica), about 40km west of the capital Dili. They were Bui-dau, 70, Flora, 50, and another (unidentified) woman about 25 years old. They had been accused of being witches. Three suspects were arrrested.<br />
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As recently as May, 2009, the issue of witchcraft hit the nation's headlines once again with East Timor's national broadcaster, RTTL, reporting that the East Timor National Police Deputy Commander Inspector Afonso de Jesus had called on residents in the capital Dili not to believe in rumor-mongering that there was a witch named Margareta flying around the city.<br />
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In his paper, Institutions and the East Timorese Experience, Andrew Harrington discusses the following case concerning witchcraft.<br />
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"...in one case involving witchcraft, an UNPol officer directed a deeply upset local who approached him with this complaint to deal with it in the traditional way.<br />
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A man had accused the complainant’s daughter of witchcraft and cursing his family. The UNPol (United Nations Police) officer had no authority to deal with accusations of black magic. A few days later, the complainant returned and advised the UNPol officer that he had done as told, and dealt with the problem using traditional means; he killed the accuser.<br />
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Another anecdotal example involving witchcraft and local dispute resolution mechanisms resulted in draconian punishment; villagers fatally placed hot coals on [an accused] witch’s back for punishment.<br />
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It should be noted that generally witchcraft punishments are not so severe, but that is not always the case; it depends on the ‘severity’ of witchcraft involved, or the degree to which the wrongdoer has disturbed the community’s system of value-circulation and socio-cosmic balance."<br />
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Other contemporary societies where witchcraft poses similar problems include Ghana. On 7 May 2009, it was reported that the District Chief Executive for Bongo, Mr. Clement Abugri Tia, had threatened to cause the arrest and prosecution of anyone who unjustifiably accused his or her neighbour of being a witch or wizard.<br />
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Speaking to the media after his confirmation at Bongo, Mr. Abugri noted that those responsible for such unjustifiable accusations have not been prosecuted, hence their continued branding of others as witches and wizards.<br />
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According to him, witchcraft has no scientific evidence, and cannot be supported by any law, therefore people cannot use it to violate the rights of others by subjecting them to all forms of physical assaults, or in some cases killing them because they claim these persons are witches.<br />
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Mr. Abugri urged his people to leave those they claimed were witches or wizards to God to judge, since he was the only one who knows a man’s heart, and the only one who could judge such people, if really they were so.[1]<br />
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The social problem of the supernatural belief in witchcraft in East Timor poses not only serious questions for the Christian soul, but also presents the justice system with the fatal consequences for women accused of witchcraft - torture and murder at the hands of vigilantes and the traditional community leaders in East Timor who administer the customary justice system.<br />
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Many anthropologists who lack a comprehension of the concepts of democratic secular law and justice, are ardent supporters of traditional justice systems even though they posit supernatural hypotheses for the explanation of the realities of social disharmony and criminal conduct and impose corporal punishments and worse tortures on citizens accused of the impossible crime of witchcraft.<br />
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In his analysis of this issue in the context of traditional local dispute resolution mechanisms, Harrington writes:<br />
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"While the ideal is a perfectly efficient and effective justice institution, this simply may not be feasible due to scarce resources or subject matter. Following Qian, in a given situation that which is feasible, not necessarily best, may be what ought to be sought. If an “antiquarian” traditional local dispute resolution mechanism is consistently used, is persistent, and operates on issues outside the formal sphere, then it likely qualifies as feasible. That they are capable of dealing both with issues formal mechanisms can and cannot, but faster and cheaper, perhaps further attests to local dispute resolution mechanisms feasibility. Through a neo-antiquarian lens, local dispute resolution mechanisms are better than merely feasible; they are truly home-grown and not merely connected to a culture, but rather are that culture.<br />
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This point must be qualified in two ways, however. While the neo-antiquarian view states, ‘new’ is not always superior to ‘old’, there is no guarantee that ‘old’ is superior to ‘new’. Edgerton broaches this issue in response to overly relativist anthropologists:<br />
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[T]raditional beliefs and practices may be useful, may even serve as important adaptive mechanisms, but they may also be inefficient, harmful, and even deadly.”[2]<br />
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He terms this ‘maladaptation’. The main point: even if a practice exists within a culture this does not necessarily ensure it is well adapted and beneficial to that culture. There are certainly numerous examples of specific practices within Timorese local dispute resolution mechanisms that seem blatantly maladaptive."<br />
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Supporting and encouraging traditional justice systems that are, in any event, anti-democratic and that admit allegations of witchcraft into "evidence" as well as the violation of human rights including the denial of representation of minors accused of offences and torture of an accused, will only sustain a framework for the perpetuation of the belief in witchcraft - and, tragically, more murders of East Timorese women.<br />
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As the then President of East Timor observed in 2003, "[c]ommon or traditional laws represent the stage of evolution of a society and usually correspond to societies based on feudal relationships both in the social and religious (non-formal religions) aspects; both aspects are combined with the political and economic ones and add to another which refers to castes as the lower echelons of society, slaves and those who practice witchcraft and whom are usually denied rights.<br />
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Traditional justice in East Timor is enforced by traditional chiefs acting as the authority, by the elders whose experiences prevail and by the 'lia-nain' (literally: keeper of the word) who are considered the men of law. The 'lia-nain' are usually the custodians of the 'lulik' (all that is sacred) or have some link to it; this derives from the need to link that which is real to that which is ethereal in order to accord moral credibility to whichever solution is adopted.<br />
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This combination of factors normally (not necessarily always) brings grave implications in the shaping of justice. One factor arises from the status held by the agents of justice and the other from the extremely powerful influence resulting from the interpretation of the facts, usually explained by resorting to the supernatural and often denying the realistic content of the values of justice (or overriding reality itself).<br />
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If we know how to take advantage of the positive aspects of traditional justice and to identify its weaknesses as a mechanism and in its values, traditional justice (in other words, 'Community-applied Justice') will play an important role in preventing minor problems from dragging on and becoming major conflicts, inducing families or even entire hamlets against each other.<br />
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It is absolutely necessary to place modern laws within a context to counterbalance the confines of the interpretation of values by traditional Justice, so as to clearly define the limits to which traditional justice must comply with and thus avoid trampling on the spirit of the law of a country or stepping on human rights. Consequently, it will be possible to establish which level of dispute in villages should be handled by traditional justice.<br />
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For traditional justice to gain greater credibility it is necessary to reorganise its components; this will enable these 'courts' to truly serve the communities and continue to be open and accessible to the general public at a greater level."[3]<br />
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<b>Footnotes</b><br />
1.<a href="http://web.archive.org/web/20110203081506/http://www.theghanaianjournal.com/2009/05/07/witchcraft-alarmists-will-face-prosecution/"> "Witchcraft alarmists will face prosecution"</a> in The Ghanaian Journal 7 May 2009<br />
2. Edgerton, Robert B. “Traditional Beliefs and Practices –Are Some Better than others?” in Laurence E. Harrison and Samuel P. Huntington, eds. Culture Matters. How values shape human progress (New York: Basic Books, 2000) p 131. per Harrington A <a href="http://easttimorlawjournal.blogspot.com.au/2012/05/institutions-and-east-timorese.html">Institutions and the East Timor Experience</a><br />
3. see Gusmao, Xanana <a href="http://easttimorlawjournal.blogspot.com.au/2012/05/on-occasion-of-international-conference.html">On the occasion of the International Conference on Traditional Conflict Resolution & </a><a href="http://web.archive.org/web/20110203081506/http://www.eastimorlawjournal.org/ARTICLES/2005/traditional_justice_east_timor_xanana.html">Traditional Justice in Timor-Leste</a> 2005 ETLJ 3<br />
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<b>Related Article</b><br />
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<a href="http://easttimorlawjournal.blogspot.com.au/2012/05/the-case-to-intervene-and-stop-east.html">2009 ETLJ 7 The Case to Intervene and Stop East Timorese Killing ‘Witches’</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-15215873128946522112012-05-24T01:19:00.000-07:002013-05-18T17:30:35.406-07:00Criminal Defamation in East Timor - A Miscarriage of Justice<strong>Original Citation: 2009 ETLJ 5 Criminal Defamation in East Timor - A Miscarriage of Justice</strong><br/><br/>According to a report by the East Timor Judicial System Monitoring Program, on 15 June 2007, the Dili District Court sentenced Antonio Aitahan Matak to conditional release in a defamation case that occurred in 2004. The hearing was conducted by a single judge, Maria das Dores (international judge). The prosecution unit was represented by Felismino Cardoso (international prosecutor) and the defendant was represented by his legal counsel Paulo dos Remedios and Nelson de Carvalho (independent lawyer).<br/><br/>The defendant was found guilty by the court for damaging the good name of the East Timor Police Force (the Bobonaro District Police) in 2004 in relation to the shooting of 2 members of CPD-RDTL by a member of the Bobonaro District Police. The two victims were shot dead in 2004 but their remains were never found. At that time, the defendant held a press conference and claimed that the Bobonaro District Police had shot the two victims.<br/><br/>For the criminal act described above, the Court sentenced the defendant to 8 months of house arrest with the condition that he not engage in any kind of criminal action in violation of the applicable law of Timor Leste during that period. If he is found to commit any such criminal action during the prescribed period, he will automatically serve one year of imprisonment and will be prosecuted for the additional offence.<br/><br/>In her decision the judge stated that it had been legitimately and convincingly established that the defendant committed the criminal act of damage to reputation in violation of Article 220 and Article 310 of the Indonesian Penal Code.<br/><br/>Article 220 of the Indonesian Penal Code states that:<br/><br/>Any person who gives notice or lodges a complaint that a punishable act has been committed, knowing that it has not been committed, shall be punished by a maximum imprisonment of 1 year and four months.<br/><br/>This article can be applied to a person who deliberately makes a false announcement or lodges a complaint to the authorities, for instance about a murder, with knowledge that this announcement is false or untrue.<br/><br/>Article 310 of the Indonesian Penal Code states:<br/><br/>The person who intentionally harms someone’s honour or reputation by charging him with a certain fact, with the obvious intent to give publicity therefore, shall, being guilty of slander, be punished by a maximum imprisonment of nine months, if this takes place by means of writings, openly demonstrated or put up, the principal shall, being guilty of libel, be punished by a maximum sentence of 1 year and four months imprisonment.<br/><br/>Article 310 of the Indonesian Penal Code can be applied to a person who commits slander by making an accusation that is subsequently broadcast that a person has committed a particular act, as well as for libel where the accusation is written.<br/><br/>The evidence submitted by the prosecution during the trial, in the form of witness testimony, indicated that the defendant had in fact made a false accusation via the print media (Suara Timor Lorosae) and the electronic media (TVTL).<br/><br/>Based on JSMP’s observations, the court did not clearly state if the defamation committed by the defendant was made against a person (individual) or against the police force.<br/><br/>The Indonesian Penal Code clearly states that there are six types of defamation, namely: Article 310 (1) on Slander, 310 (2) on Libel, 311 on Calumny, 315 on Simple Defamation, 317 on Deliberate Defamation and 318 on Calumnous Insinuation. If the object of the defamation was not a person but rather an institution that was legitimately carrying out its functions then Article 310 of the Indonesian Penal Code could not be charged or taken into account when convicting the defendant. Article 316 and Article 319 of the Indonesian Penal Code should be applied.<br/><br/>Based on the observations of JSMP, the defendant committed defamation against the PNTL institution. This was not defamation against an individual, therefore the articles charged against the defendant and considered by the court were inappropriate.<br/><br/>After the judge read out the decision, the lawyer of the defendant stated an intention to appeal against the decision. The type of sentence handed down and its duration were not particularly severe, and were quite lenient considering that the defendant was only sentenced to house arrest. However the lawyer of the defendant still decided to appeal against the decision and is legally entitled to do so in accordance with the rights of the defendant to lodge an appeal.<br/><br/>The lawyer of the defendant stated an intention to appeal because the Judge had not paid sufficient attention to the substance of the indictment. In the initial indictment the prosecution charged the defendant with Article 210 and Article 207 of the Indonesian Penal Code, however in her decision the Judge convicted the defendant pursuant to Article 220 and Article 310 of the Indonesian Penal Code. This means that the judge decided this case without paying proper attention to the charges in the indictment and the articles cited by the public prosecutor.<br/><br/>The most interesting thing about this case report is that there is no reference to UNTAET Executive Order 2/2002 on the decriminalisation of defamation in East Timor.<br/><br/>By that Executive Order, the Special Representative of the Secretary-General of the United Nations, who was the Transitional Administrator during the UNTAET period, pursuant to the authority given to him under United Nations Security Council Resolution 1272 (1999) of 25 October 1999 and United Nations Transitional Administration in East Timor (UNTAET) Regulation 1999/1 of 27 November 1999 on the authority of the Transitional Administration in East Timor, amended the applicable Indonesian law in the following manner:<br/><br/>"Effective immediately, the conduct defined in Chapter XVI (Defamation) of the Indonesian Penal Code, comprising articles 310 through 321, is of non-criminal nature in East Timor.<br/><br/>Under no circumstance may said articles be the basis for criminal charges by the Public Prosecutor. (emphasis added)<br/><br/>Persons allegedly defamed shall be limited to civil actions and only to the extent that such remedies may be provided in a future UNTAET Regulation.<br/><br/>This Executive Order shall apply to all pending proceedings in East Timor, regardless of the time of any alleged offense."<br/><br/><a href="http://web.archive.org/web/20110726012914/http://www.eastimorlawjournal.org/East_Timor_National_Parliament_Laws/Law-2003-10.pdf">UNTAET Executive Order 2/2002</a> came into force in East Timor on 7 September 2000.<br/><br/>The failure of the legal system of East Timor to determine the most fundamental question in court proceedings; namely, what is the applicable law, indicates several worrying problems. Firstly, it means that the international judges are not competent to determine the applicable law in proceedings before them. Secondly, it indicates incompetency on behalf of both the prosecution and the defence to properly bring charges and to properly defend the legal rights of defendants charged with criminal offences. The attendant failure of national law and justice civil society agents to correctly identify the issues is also of note.<br/><br/>More generally, this problem exposes a catastrophic weakness in the judicial system in East Timor - one that leaves citizens convicted of impossible crimes - crimes which have been abolished by a lawful exercise of legislative power that has been totally and willfully disregarded by all of the structural elements of the judicial system.<br/><br/>Such developments in the legal system of East Timor also have obvious devastating impacts on the rule of law. If laws that have been abolished by a subsequent law continue to be the basis of criminal charges and illegal application by the courts leading to the conviction of innocent citizens, what possible hope can there be for the entrenchment of the rule of law? What possible hope can there be for public confidence in the judiciary?<br/><br/>Yet East Timor's development partners continue to commit millions of dollars to the development of a dilapidated and dysfunctional court system. Most of this development assistance is funnelled through the UNDP - an agency that is part of the international bureaucracy that left East Timor prone to the disintegration of the rule of law, corruption and human rights violations throughout the post-independence era.<br/><br/>For all of UNMIT' chief Atul Khare's talk of the rule of law in East Timor, little seems to be done to assess and identify the structural problems in the judicial system and to develop appropriate policy and legislative options for the necessary reforms.<br/><br/>Ultimately, it is the Parliament that has the power to enact laws that, in specific cases of clear miscarriages of justice in the Courts, override erroneous decisions based on flawed jurisprudence and that, more generally, restructure the court system and reform the human resource capacities in the institutions responsible for the administration of the law.<br/><br/>Warren L. Wright BA LLB<br/>Sydney 18 April 2009<br/><br/>See also <a href="http://easttimorlawjournal.wordpress.com/2012/05/24/defamation-a-crime-or-not-in-timor-leste-a-legal-analysis/"> 2009 ETLJ 4 Defamation – a Crime or Not in Timor-Leste? A Legal Analysis </a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-60147031544693285992012-05-24T01:12:00.000-07:002013-05-18T17:30:35.390-07:00Defamation - a Crime or Not in Timor-Leste? A Legal AnalysisOriginal Citation: 2009 ETLJ 4 Defamation - a Crime or Not in Timor-Leste? A Legal Analysis by Nomen Nescio (a pseudonym)<br/><em>Note: This is an English translation of an article written by an East Timorese lawyer in Tetum. The author did not wish to be identified. The English translation has been edited by the editor of the East Timor Law Journal. The original Tetum text follows.</em><br/><br/>Introduction<br/>Defamation was confirmed as a criminal offence in Timor Leste in 2003 in the case of a non-national versus Suara Timor Lorosa’e (a leading daily newspaper) where the court decided in favor of the non national. As a consequence, STL had to pay a lot of money to that person. This issue was also debated when the previous government tried to criminalise defamation through a draft of a new Penal Code that up to this day continues to be a “draft” waiting to be approved in the coming months. At that time everybody, civil societies, academics, Catholic Church and some international organisations did not agree with the plan of the previous government to criminalize defamation. That is why the President of the Republic (current Prime minister) invited everybody including the Judges of the Court of Appeal to an open discussion or debate on Televizaun Timor Leste (TVTL) and as a result the draft Penal Code is still pending (Thank God!).<br/>However on the other hand, the Court of Appeal made a decision that “defamation” is still considered to be a criminal offence only because the executive order that was issued by the late Sergio Veira de Mello (during the United Nations Transitional Administration in East Timor period), was not on a par with other applicable laws or regulations in force in Timor-Leste. The last decision of the Court of Appeal, at that time headed by the President Claudio Ximenes, became “jurisprudence” in Timor-Leste. This Court of Appeal decision became a precedent for the Judges in dealing with cases of defamations issues.<br/>Lately some people have complained to the police or the public prosecutor about defamation, as they think that they has been defamed through the media, and demand that their cases be taken to court seeking justice for their honour and dignity.<br/>A simple question for the issue of defamation whether the decision of the Court of Appeal is correct or not? Or in simple words: is defamation a crime or not in Timor-Leste? This question will be weighed having regard to the legal bases and also by making a simple analysis of the defamation issue.<br/>Before making a little analysis into this issue, I would like to bring you back to the trial case of a militia member in 2004. The case was Prosecutor vs Armando dos Santos. The Dili District Court (presided over by some Timorese Judges) sentenced the defendant Armando dos Santos based on the Indonesian Penal Code. At that time the prosecution also ‘used’ articles stated in the Indonesian Penal Code to charge Armando dos Santos.<br/>When the case was appealed to the Court of Appeal, Claudio Xinemes who was the presiding judge used the Portuguese Penal Code to sentence the defendant Armando dos Santos.<br/>Immediately a conflicting law was created at that time. Who was wrong?<br/>Luckily, the National parliament immediately intervened and made an interpretation of the UNTAET Regulation 1/1999 where it says that: the subsidiary law applicable in Timor-Leste is the Indonesian law and “not” Portuguese laws. Lastly, the interpretation for the subsidiary law became clear, and the Court of Appeals’ Judge Claudio Ximenes, interpretation was completely wrong!<br/>Now how about another decision of Judge Claudio Ximenes to interpret the issue of defamation in Timor-Leste? As for the interpretation of Judge Claudio Ximenes of the “executive order” saying that its level or category is not the same as law, is it right or wrong?<br/><strong>The resolution of The Security Council to establish UNTAET</strong><br/>I would like to invite you all to go back to the UNTAET mandate immediately after the restoration of Timor-Leste’s independence on 20th May 2002.<br/><br/><a href="http://web.archive.org/web/20110726012914/http://www.eastimorlawjournal.org/UN/SCR12721999untaet.html">Security Council resolution number 1272</a> empowers UNTAET with the following three powers: a) legislative power, b) executive power, and c) judicial administrative powers.<br/>These 3 powers were given to the special representative of the secretary general of the United Nations in Timor-Leste who was at the time the late Sergio Vieira de Mello. The late Sergio Vieira de Mello was the representative of the United Nations with great powers given by the “Security Council. The Security Council which created all international instruments, which many countries ratified and implemented in the whole world, all have come from the Security Council of the United Nations. Like the Universal Declaration of Human Rights and all the international conventions ratified by Timor-Leste, they became an instrument higher than the normal law of each individual country.<br/><br/>The <a href="http://web.archive.org/web/20110726012914/http://www.eastimorlawjournal.org/East_Timor_National_Parliament_Laws/constitution-english.html">Constitution of Timor-Leste</a> provides, inter alia, as follows:<br/>Article 9<br/>(International law)<br/>1. The legal system of East Timor shall adopt the general or customary principles of international law.<br/>2. Rules provided for in international conventions, treaties and agreements shall apply in the internal legal system of East Timor following their approval, ratification or accession by the respective competent organs and after publication in the official gazette.<br/>3. All rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid.<br/>The provisions of paragraphs (1) and (2) of Article 9 are very clear. That is why when international conventions and treaties have been approved, ratified or adhered to and that has been published in the Official Gazette (Jornal da Republica), they have the force of law in the country. Therefore, laws or decrees laws that the Parliament or Government have made must be in harmony with the spirit of international conventions, as well as with the Constitution. We have an obligation to bow and to follow the order that the international instruments have constituted because we ourselves have a commitment when we wanted to ratified these international instruments.<br/>Let’s go back to the issue of the Resolution of the Security Council in regards to UNTAET. During the UNTAET time, Timor-Leste was not yet a nation. It did not have its own sovereignty. We were in a transitional phase. Because of this, one of UNTAET’s mission objectives was to establish a Constituent Assembly to prepare Timor-Leste’s Constitution for the Republic (currently in use) as well as independence. This shows the depth of the powers that were given by the Security Council to UNTAET. They came from highest organs of the United Nations.<br/>With these three powers bestowed on the late Sergio Viera de Mello as the Transitional Administrator, he was the head of executive, legislative and judicial administration powers during the UNTAET time.<br/>Simply speaking, the late Sergio Viera de Mello alone was the “legislator”, executive or head of the transitional Government, and was also to oversee judicial administration.<br/>With these powers or duties as the legislator, all the UNTAET Regulations and other law-making instruments needed was his signature. In addition, UNTAET did not differentiate the legal norms issued by UNTAET. Whether they were in the form of regulations, executive orders, directives or notifications, they all emanated from the same source of power. Furthermore, there was no UNTAET law that declared a hierarchy of laws at different levels of legal force and power.<br/>It was only after independence that we made a law regarding the sources of the law. <a href="http://web.archive.org/web/20110726012914/http://www.eastimorlawjournal.org/East_Timor_National_Parliament_Laws/Law-2003-10.pdf">Law number 10/2003 on the interpretation of Article 1 of Law no. 2/2002 of the 7 August on the Sources of the Law</a> provides:<br/><br/>Section 2<br/>Sources of law<br/>1. Legislation is the only immediate source of law in Timor-Leste.<br/>2. Legislation is generic provisions issued by the competent organs of the State;<br/>3. The sources of law in the Democratic Republic of Timor-Leste are:<br/>(a) The Constitution of the Republic;<br/>(b) Laws emanated from the National Parliament and from the Government of the Republic;<br/><br/>It can not be disputed that the term “legal instruments” in Article 2(c) includes executive orders and all other law-making instruments issued by UNTAET under the hand of the late former Transitional Administrator. They were all laws for all purposes.<br/><strong>What was the position of UNTAET in regard to defamation?</strong><br/>The objective of the executive order 2/2002 issued by UNTAET was to avoid defamation being considered as a criminal offence then and now.<br/>The Indonesian Penal Code has been applied since the start of UNTAET, (and it has been applied up until this very minute) as a subsidiary law. In the opinion of UNTAET, the articles in the Indonesian Penal Code starting from article 310-321 regarding defamation could not be applied in Timor-Leste because was against human rights principles and also contrary to civil and political rights.<br/><br/>That is why <a href="http://web.archive.org/web/20110726012914/http://www.eastimorlawjournal.org/East_Timor_National_Parliament_Laws/Law-2003-10.pdf">executive order 2/2002</a> states that:<br/>With immediate effect, the conduct defined in Chapter XVI (Defamation) of the Indonesian Penal Code, which consists of Articles 310 to 321, is of non criminal nature in East Timor. Under no circumstances those articles can serve as a basis for any criminal accusation by the Prosecutor-General. People allegedly defamed are limited to civil actions and only to where such repairs can be provided in a future UNTAET Regulation).<br/>The Transitional Administrator’s powers were plenary and certainly extended to altering the applicable Indonesian law as this Executive Order does. The alteration did not have to be in any particular form such as a regulation.<br/><a href="http://web.archive.org/web/20110726012914/http://www.eastimorlawjournal.org/East_Timor_National_Parliament_Laws/constitution-english.html"><strong>Constitution of the Republic of Timor-Leste</strong></a><br/>What does our Constitution of the Republic says about the laws and norms issued by UNTAET? Also, what does the Constitution says about “defamation”?<br/>Article 9.3 of the Constitution states that all rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid.<br/>So, those norms that have been approved by the Parliament or by the Government must be harmonised so as not to contravene any international convention or agreement. They must not be applied without being so harmonised. So the question is does the law as interpreted and applied by the Court of Appeal really follow the spirit of the Constitution and the international conventions that have been ratified?<br/>The same goes for the executive order which was issued during the time of UNTAET on the 22 March 2002: is it still applicable or not? ? Section 165 of the Constitution provides that:<br/><br/>(Previous Law)<br/>Laws and regulations in force in East Timor shall continue to be applicable to all matters except to the extent that they are inconsistent with the Constitution or the principles contained therein.<br/>One thing the Constitution wants to say here is that the laws and regulations currently in use in Timor-Leste continue to be applicable, as long as they have not been amended or revoked. The laws and regulations referred to are the Indonesian laws as the subsidiary laws and also the Regulations issued by UNTAET. Legal diplomas or regulations or all laws which applied after the 22 March 2002 continue to be applicable only for so long as there has not been a written amendment, or it has been revoked or voided by the Tribunal or the Parliament. The decision of the Court of Appeal on the defamation issue was only for that case which at that time was before the court. The Court of Appeal is yet to issue a “special” decision to specifically deal with the “executive order” and so the Court of Appeal has not “voided” that executive order. Nor has the Parliament revoked or amended by publication in the official Gazette. Only the Court of Appeal and the Parliament can “void” or “revoke” or “amend” any laws so that means that the executive orders and legal diplomas which have not been repealed, are still applicable.<br/>This means that defamation can not be processed as a criminal action, it can only be prosecuted as a civil action. The executive order decriminalized defamation.<br/><strong>Impact of erroneous jurisprudence regarding the defamation issue</strong><br/>On the 20th May 2002 Timor-Leste became an independent sovereign nation. At the same time, Timor-Leste became a member of the United Nations and began to ratify conventions and international instruments that were important. Since these conventions are ratified Timor-Leste is obliged to submit an annual report to the United Nations regarding the implementation of these conventions.<br/>The issue of defamation will be the topic in the national debate in Timor-Leste with ideas for or against it and will be highly criticised in the international forums. Since 2002 to 2009, the question of defamation is continuously raised and has became like a “virus”, because there are many who do not agree with these norms. Some believe that in the current situation, the criminalization of defamation favors more those in power than a Timorese citizen or a citizen of another country.<br/><br/>This year, 2009, a member of the current government is taking court action against a local journalist. That Minister is alleging defamation and this has been a interesting topic for people in Timor-Leste and specially for people abroad.<br/><br/>The President of the Republic in his official visit to New Zealand a few month ago was met with a protest from journalists who follow the daily political situation in Timor-Leste. Many people have started to send letters of concern to the government and the President of the Republic.<br/>More important, the implementation report of the conventions which Timor-Leste so bravely ratified since 2002, will be heavily criticized and there may even be a possibility that some people may take this case to the Human Rights session in Geneva if the government does not give serious attention to this matter. (Every year individuals or groups can make interventions in Geneva regarding violations of human rights and violations of legal civil and political rights). All conventions which Timor-Leste has ratified forbid any violations of the people’s democratic rights.<br/><br/><strong>Conclusion</strong><br/>The executive order issued by Sergio de Mello was based on the powers received from the resolution of the United Nations Security Council to establish UNTAET. Immediately after the restoration of independence of Timor Leste, UNTAET Regulations, Directives, Executive Orders and Notifications, issued by UNTAET were based on these powers.<br/>As a member of the United Nations, Timor-Leste has made various agreements with the United Nations through the ratifications of international conventions. As a consequence, Timor-Leste must bow and comply with the commitments made with the United Nations to implement these conventions properly. If these conventions are not properly implemented, Timor-Leste is in violation of the principal “<em>pacta sunt servanda</em>” which is universal. The principal “<em>Pacta sunt servanta</em>” (<em>Pacta sunt servanta</em> comes from Latin; in Indonesian: “janji harus ditepati”.)<br/>In the Vienna Convention on the Law of Treaties, 1969, Preamble 3, this principal is also stated in Article 26:<br/>“Every treaty in force is binding upon the parties to it and must be preformed by them in good faith)”.<br/>All parties (the countries) can not use internal norms as reasons for failing to the implementation as stated in the treaties. These provisions can be found in the principal that talks about “peremptory norm of general international law” (or jus cogens). Normally this principal is more connected to issues of civil agreements. However, the legal system in Timor-Leste is “civil law system/sistema civilista” and that is why we have a great obligation to bow and to follow the international norms that we have signed with commitment.<br/><br/><em>Published in the East Timor Law Journal on 13 April 2009</em><br/><br/>----------<br/><br/><strong>Original Tetum Version</strong><br/><br/><strong>2009 ETLJ 4 (T) Kriminaliza Difamasaun iha Timor Leste, bele ka lae? Análiza legal ida husi Nomen Nescio (NN)</strong><br/><br/>Introdusaun<br/><br/>Difamasaun sai tiha hanesan ofensa kriminal hahu iha Timor Leste iha tinan 2003 nia laran bainhira mosu kazu ida nebe ema estrangeiro kontra STL no ikus mai ema ne’e manan iha tribunal. Ho konsekwensia Jornal STL tenki selu osan lubuk ida ba ema estrangeiru ne’e. Diskusaun ba asuntu hanesan sai rame liu tan bainhira Governu anterior koko atu kriminaliza difamasaun liu husi esbosu Codigo Penal foun nebe to’o ohin loron sei ho status ‘draft’ hela no hein atu aprova iha fulan hirak nia laran’. Iha tempu neba ema hotu-hotu, sociedades sivil, akademiku, Igreja Katolika, organijasaun internasional balu, la konkorda ho Governu anterior nia planu nebe hakarak kriminaliza difamasaun. Tamba ne’e, Presidente Republika Xanana Gusmao (Primeiru Ministro Atual) konvida ema hotu-hotu, inklui Juizes Tribunal Rekursu, halo diskusaun ka debate direitamente liu husi TVTL ho resultadu esbosu kodigu penal ne’e sei pendenti hela (Gracas a Deus!).<br/><br/>Maibe iha parte seluk, Tribunal Rekursu hasai desijaun ida katak ‘difamasaun’ sei konsidera nafatin ba ofensa krimi tan de’it ‘executive order’ ne’ebe matebian Sergio Viera de Mello (iha tempu UNTAET) hasai, ninia ‘level’ katanya la hanesan ho Leis ka Regulamentu. Desijaun Tribunal Rekursu, altura neba Presidente Claudio Ximenes, hasai ikus mai sai tiha hanesan ‘jurisprudensia’ iha Timor Leste. Ho konsekwensia mak Juizes sira sei hare tuir ba desijaun nebe Tribunal Rekursu hasai tiha ona, ka sai hanesan jurisprudensia ida ba asuntu difamasaun nian.<br/><br/>Ikus-ikus ne’e ema balu hahu hatama keixa ba polisia ka Prokurador konaba difamasaun, nebe tuir sira nia hanoin katak ema balu desfama sira liu husi meius publiku nian, tamba ne’e sira ijiji atu prosesa sira nia kazu ba Tribunal atu hetan justisa ba sira nia onra ka dignidade.<br/><br/>Pergunta simples ba asuntu difamasaun mak ne’e; Desijaun tribunal rekursu konaba difamasaun ne’e los duni ka lae? Ou ho liafuan simples karik atu dehan de’it; kriminaliza difamasaun iha Timor Leste bele ka lae? Pergunta ida ne’e sei tetu tuir baze legal nomos halo analiza simples ida ba asuntu difamasaun nian.<br/><br/>Molok halo analiza oit oan ba asuntu ida ne’e hau hakarak dada fali sani nain sira nia hanoin ba julgamentu kazu milisias ida nebe akontese iha tinan 2004. Kazu ho naran Prokurador vs Armando dos Santos. Tribunal distrital Dili (nebe prezidi ka lidera husi Juiz Timor oan balu) hakotu sentenca ba arguido Armando dos Santos bazeia ba Kodigu Penal Indonesia nian, prokurador ka ministeriu publiku mos altura neba ‘uja’ artigu hirak nebe iha Kodigu Penal Indonesia hodi akuja Armando dos Santos. Bainhira kaju ne’e rekursu ba Tribunal rekursu, Presidente Claudio Ximenes nebe lidera sesaun iha Tribunal rekursu nian ‘uja’ fali Kodigu Penal Portugal hodi hatun sentensa ba arguido Armando dos Santos. Teki-tekir hamosu kedas konflitu lei iha tempu neba. Se mak sala? Sorti bot, Parlamentu Nasional anterior halo kedas intervensaun no interpretasaun ida ba Regulamentu UNTAET 1/1999 nebe dehan katak ’lei subsidiariu nebe aplika iha Timor Leste mak refere ba Lei Indonesia nian, ‘laos’ Leis Portugal. Ikus mai, interpretasaun ba lei subsidiariu sai klaru kedas, e Tribunal Rekursu, Juiz Claudio Ximenes ninia ‘interpretasaun’ totalmente sala!. Agora oin nusa konaba desijaun ida tan husi Juiz Claudio nian hodi interpreta asuntu difamasaun iha Timor Leste? Tuir Juiz Claudio ninia interpretasaun ba ‘ordem executivo’ ka executive order dehan katak ninia ‘level’ ka ‘kategoria’ la hanesan ho lei, tebes ka lae?.<br/><br/>Rezulusaun Konsellu Siguransa hodi hari’i UNTAET<br/><br/>Hau hakarak konvida tan sani nain sira atu hanoin fila fali mandatu nebe UNTAET simu molok Timor Leste hetan ninia restorasaun independencia iha loron 20 Maio 2002.<br/><br/>Resolusaun Konsellu Siguransa Nasoes Unidas nian ho numeru 1272 nebe estabelese UNTAET ho poder tolu mak hanesan; a) poder legislativu, b) poder executivu, ho c) administrasaun Judicial nian.<br/><br/>Husi poder tolu ne’e ema nebe altura neba sai hanesan reprezentante spesial ba Sekretariu Geral Nasoes Unidas iha Timor Leste mak matebian Sergio Viera de Mello. Matebian Sergio Mello hanesan ‘reprezentante’ Nasoes Unidas ho kbi’it bot nebe simu husi ‘Konsellu Siguransa’. Resolusaun Konsellu Siguransa nebe hamosu Instrumentu internasional hotu-hotu, nebe pais barak ratifika ka aplika iha mundu rai klaran, mesak sai husi Konsellu Siguransa Nasoes Unidas nia liman laran. Hanesan Deklarasaun Universal Direitus Humanus, Konvensaun internasionais hotu-hotu nebe Timor Leste mos ratifika, sai hanesan instrumentu ida nebe as liu lei bai-bain nebe pais ida-ida produs.<br/><br/>Konstituisaun Republika Timor Leste Artigu 9 Simu Direitu Internasionál) 1. Orden jurídika Timór nian adopta PRINSÍPIU sira direitu internasionál jerál nian eh hotu-hotu nian. 2. Norma sira-ne’ebé mai iha konvensaun, tratadu no akordu internasionál sira-nia laran vigora iha orden lei railaran nian, wainhira hetan aprovasaun, ratifikasaun eh adezaun hosi órgaun kompetente idaidak no wainhira publika tiha ona iha jornál ofisiál. 3. Norma sira-ne’e sei la iha folin, sira latuir karik konvensaun no akordu internasionál sira-ne’ebé lei Timór nian simu tiha ona.<br/><br/>Iha artigu 1 ho artigu 2 koalia klaru teb-tebes, tamba ne’e bainhira norma sira ne’ebe mai husi Konvensaun ka tratadus internasional hetan ona aprovasaun, ratifikasaun ka adezaun, nomos wainhira publika tiha ona iha jornal da republika (lembaran Negara/gazette) sei sai hanesan orden iha rai laran. Nune’e Leis ka Dekretus Leis nebe Parlamentu ka Governu halo ‘tenki’ harmonia ho ispiritu konvensaun internasional, alem Konstituisaun, sira ne’e hotu. Iha obrigasaun boot ida atu hakru’uk nomos atu halo tuir orden nebe instrumentu internasional haruka, tamba ita rasik ho ita nia komitmentu hakarak ratifika instrumentu internasional hirak ne’e.<br/><br/>Ita fila fali ba asuntu rezulusaun konsellu siguransa nian ho asuntu UNTAET. Iha tempu UNTAET Timor Leste seidauk sai hanesan nasaun ida, seidauk iha orgaun soberanu ida, sei iha faze tranzisaun, tamba ne’e UNTAET ninia misaun ida mak hari Asembleia Konstituante atu prepara Timor Leste ninia Konstituisaun da Republika (nebe agora aplika hela) nomos Independensia ida. Atu aprofundu liu tan katak poder tolu nebe Konsellu Siguransa fo ba UNTAET mai husi orgaun Nasoes Unidas nian nebe ho nivel ida aas teb-tebes.<br/><br/>Ho poder tolu nebe matebian Sergio Vierra de Mello simu, nia mesak mak sai hanesan ulun boot ba poderes executivu, legislativu ho administrasaun judicial iha Timor Leste, iha tempu UNTAET nia laran. Ho lian simples karik signifika katak matebian Sergio Mello de’it mak hanesan ‘legislador’, executivu ka lidera Governu transitional, nomos tau matan ba administrasaun judisiariu nian. Ho poder ka kna’ar nu’udar legislador mak Regulamentu UNTAET hotu-hotu sei hetan de’it asinatura husi matebian Sergio. Plus, UNTAET la halo diferensa ba normas hirak nebe UNTAET hasai hanesan; Ordem Executivo, ka Regulamentu, ka sst. Dokumentu hotu-hotu konaba orden ka regulamentu hotu konsidera hanesan dokumentus legal, tamba matebian Sergio Mello mak assina bazeia ba mandate nebe mai husi resolusaun Konsellu Siguransa. Poder ‘legislador’ nebe matebian Sergio Mello simu hamosu ka produs Regulamentu ho naran ‘Regulamentu UNTAET’ nomos diplomas legais oi-oin. La iha artigu ida nebe koalia katak iha tempu UNTAET iha hirarkia leis ka iha fontes de leis, ka diferensia entre leis ho regulamentu.<br/><br/>Iha tempu ukun an tiha hafoin ita hamosu lei ida konaba fontes do Direito ka ho lian Indonesia ‘sumber-sumber hukum’. Lei numeru 10/2003 Interpretação do Artigo 1 da Lei No. 2/2002 de 7 de Agosto e Fontes do Direito iha Artigu 2 (c) supletivamente os regulamentus e demais diplomas legais da UNTAET enquanto nao forem revogados,...’. Iha artigu ida ne’e koalia sai momos katak ‘regulamentus e demais diplomas legais da UNTAET’...ho lian simples karik atu dehan ‘regulamentus ho diplomas legais seluk-seluk tan husi UNTAET...’ Agora Ordem executivu/executive order nebe matebian Sergio Mello ho kbiit bot husi Konsellu Siguransa Nasoes Unidas nian ne’e diplomas legais ka lae? Iha artigu ida ne’e fo legitima ida ba level ka kategoria ‘Regulamentus e demais diplomas legais da UNTAET’. Liafuan ‘e’ ka ‘ho’ ka ‘dan’ ka ‘and’ ne’e signifika katak rua-rua ne’e hanesan, la iha ida mak bot liu ka kiik liu ida fali. Tamba ne’e Lei ida ne’e konsidera ‘Regulamentus e demais diplomas legais da UNTAET’, nebe ‘ordem executivu’ mos hanesan diplomas legais nebe reprezentante Nasoes Unidas mak hasai. Resolusaun nebe Konsellu Siguransa hasai ho forsa boot no iha kbiit atu hanesan ho Konstituisaun. Tamba ne’e bainhira ita kompara Konvensaun hotu-hotu nebe ita ratifika ho Konstituisaun da Republika, iha parte direito nian ‘kuaze’ hanesan hotu. Tamba ne’e Leis nebe Parlamentu halo, ka Dekretus leis nebe Governu aprova tenki harmonia ho Konstituisaun ho konvensaun internasional.<br/><br/>Normalmente iha pais hotu-hotu, buat ida naran ordem executivo ne’e hasai husi Governu. Governu hasai ordem executivo atu regula buat ruma iha area oi-oin. Executive order ka ordem executivo nebe Governu Sergio de Mello hasai hanesan mos regulamentu ida (Governu Sergio tamba poder executivu ne’e so Sergio de’it mak hetan iha tempu UNTAET) atu aplika iha tempu neba nomos agora ‘kuandu’ seidauk ‘revogados’ ka alterasaun ka annula tiha ‘ordem executivo’ ne’e.<br/><br/>Klaru katak ho poder nu’udar legislativu no executivu, nebe simu kbi’it husi Konsellu Siguransa Nasoes Unidas, dokumentus legal hotu nebe matebian Sergio Mello assina konsidera hanesan ‘Leis’ ka Regulamentu (liafuan ‘Leis’ husi lian Latin karik ‘Lex’, English karik ‘laws’ nebe ho magarti ida de’it mak undang-undang. Regulamentu mos husi lingua Latin ‘Regulare’ ho lian english karik ‘Regulation’, lian Portuguese ‘Regulamento’ nebe ho magarti mak ‘mengatur’ nebe Governu mak halo regulamentu atu hodi ‘mengatur’ konaba asuntu ida. Tamba ne’e iha tempu UNTAET la temi ‘Leis’ ka ‘Laws’ maibe ‘Regulamentu’ ka ‘executive order/ordem executivo’.<br/>Oin nusa UNTAET ninia pozisaun konaba asuntu difamasaun?<br/><br/>Ordem executivo/Executive order 2/2002 nebe hasai husi matebian Sergio Vierra de Mello, iha tempu UNTAET.<br/><br/>Objectivu husi executive order 2/2002 nebe UNTAET hasai atu labele konsidera difamasaun hanesan ofensa krimi ida iha Timor Leste iha tempu neba nomos tempu agora. Tamba hahu husi tempu UNTAET Timor Leste sei aplika nafatin Kodigu Penal Indonesia (nebe to’o minutu ida ne’e sei aplika nafatin) hanesan lei subsidiariu ka hukum tambahan. Tuir UNTAET ninia opiniaun katak artigu hirak nebe regula iha Kodigu Penal Indonesia nian hahu husi artigu 310-321 konaba difamasaun labele aplika iha Timor Leste tamba kontra prinsipiu direitus humanus nomos liu-liu kontra prinsipiu direitu civil ho politika. Tamba ne’e liu husi executive order 2/2002 koalia hanesan ne’e: Com efeitos imediatos, a conduta definida no Capítulo XVI (Difamação) do Código Penal Indonésio, que compreende os artigos 310 a 321, é de natureza não criminal em Timor-Leste. Em nenhuma circunstância podem os referidos artigos servir de base para qualquer acusação criminal da parte do Procurador-Geral. As pessoas alegadamente difamadas estarão limitadas a acções civis e apenas até onde tais reparações possam estar previstas num futuro Regulamento da UNTAET’.<br/><br/>Konstituisaun Republika Demokratika Timor Leste<br/><br/>Sa ida mak ita nia Konstituisaun da Republika koalia konaba leis ka normas hirak nebe UNTAET hasai? Nomos sa ida mak Konstituisaun koalia konaba asuntu ‘difamasaun’? Artigu 9.3 Norma sira-ne’e sei la iha folin, sira latuir karik konvensaun no akordu internasionál sira-ne’ebé lei Timór nian simu tiha ona. Nune’e, norma hirak nebe Parlamentu aprova ka norma hirak nebe Governo aprova tenki tuir konvensaun no akordo internasional ninia prinsipiu no labele kontra tamba ‘Norma sira ne’e sei la iha folin,…’ katak labele aplika maibe tenki halo harmonizasaun. Artigu sira nebe sei sai hanesan jurisprudensia iha Tribunal Timor Leste, aplika los ona ga lae, kuandu tetu no hare tuir ispiritu artigu 9.3 Konstituisaun RDTL nian? Prosesa nafatin difamasaun hanesan ofensa krimi ida, tuir duni ispiritu Konstituisaun ho konvensaun internasional nebe ita ratifika ona?<br/><br/>Nune’e mos konaba ‘executive order’ nebe hasai iha tempu UNTAET molok loron 22 Marsu 2002, sei iha forsa nafatin ka lae? Konstituisaun da Republika mensiona asuntu ne’e iha Artigu 165 nebe hateten ‘Testu Konstituisaun ne’ebé hetan aprovasaun iha loron 22 fulan Marsu tinan 2002 Lei no regulamentu sira-ne’ebé hala’o hela iha Timór-Leste sei aplika nafatin, bainhira sira la iha alterasaun ka revogasaun ba sasán hotu-hotu ne’ebé la hasoru Lei Inan no PRINSÍPIU sira ne’ebé konsigna iha nia laran’.<br/><br/>Iha buat ida nebe Konstituisaun hakarak koalia iha ne’e katak… Lei no regulamentu sira-ne’ebé hala’o hela iha Timór-Leste sei aplika nafatin, bainhira sira la iha alterasaun ka revogasaun…Lei no Regulamentu nebe refere mak Leis Indonesia nebe sei sai hanesan lei subsidiariu nomos regulamentu nebe UNTAET hasai. Diplomas legais ka regulamentu ka Leis hotu-hotu nebe aplika ‘molok’ 22 Marsu 2002 sei aplika nafatin ‘KUANDU’ seidauk halo alterasaun ruma iha skrita, ka revogados ka annula husi Tribunal ka Parlamentu. Desijaun Tribunal Rekursu konaba asuntu difamasaun sai husi kaju ida nebe iha tempu neba ema hato’o rekursu hafoin tribunal deside de’it tuir kazu ne’e, Tribunal rekursu seidauk hasai desijaun ‘especial’ ida atu koalia espesifiku konaba ‘executive order’, konsidera katak Tribunal Rekursu seidauk ‘annula’, ka Parlamentu mos seidauk ‘revogados’ ka alterasaun nebe anunsiu liu husi jornal da republika. Liafuan ‘bainhira sira la iha alterasaun ka revogasaun..’ ne’e katak bainhira Tribunal Rekursu seidauk ‘annula’ ka Parlamentu Nasional atual seidauk halo revogasaun ka alterasaun liu husi lei ruma, executive order tenki aplika nafatin tamba hanesan diploma legais ida nebe sei kontinua aplika.<br/><br/>Lei numeru 10/2003 konaba Interpretação do Artigo 1 da Lei No. 2/2002 de 7 de Agosto e Fontes do Direito<br/><br/>Lei numeru 10/2003 konaba Interpretação do Artigo 1 da Lei No. 2/2002 de 7 de Agosto e Fontes do Direito (ho lian simples, lei ne’e konaba sumber-sumber hukum iha Timor Leste) Artigu 2 (c) supletivamente os regulamentus e demais diplomas legais da UNTAET enquanto nao forem revogados, assim como a legislacao Indonesia nos termos do artigo 1 da presente lei.<br/><br/>Artigu ida ne’e atu koalia katak bainhira Tribunal ka Parlamentu seidauk halo ‘revogados’ ba executive order, executive order ne’e sei iha forsa juridiku nafatin ka aplika nafatin iha Timor Leste. So Tribunal hasai tiha desijaun ida atu annula tiha ka Parlamentu hasai Lei ida atu revoga tiha executive order ne’e hafoin bele dehan executive order ne’e labele duni ona implementa e bele fo fatin atu kriminaliza nafatin difamasaun bazeia ba lei subsidiariu (Kodigu Penal Indonesia). Maibe, dala ida tan! enquanto nao forem revogados,...’ regulamentus ho diplomas legais nebe hasai iha tempu UNTAET sei aplika nafatin, quer dizer labele prosesa difamasaun liu husi asaun kriminal nian, so liu husi asaun civil de’it (ka ho lian Indonesia nian karik so liu husi ‘gugatan perdata de’it’).<br/><br/>Impaktu husi jurisprudensia nebe sala konaba asuntu difamasaun<br/><br/>20 Maiu 2002 Timor Leste sai hanesan Pais independente ho orgaun soberano. Iha tinan 2002 ne’e kedas Timor Leste sai membru Nasoes Unidas no hahu ratifika Konvensaun ka instrumentu internasional hirak nebe importante. Bainhira Timor Leste ratifika konvensaun hirak ne’e, Timor Leste mos iha obrigasaun boot atu hatama relatoriu tinan-tinan ba Nasoes unidas konaba oin nusa rezultadu husi implementasaun ba konvensaun hirak ne’e.<br/><br/>Asuntu difamasaun sei sai hanesan topiku debates iha forum nasional (iha Timor Leste ho ideias pro-kontra) nomos sei sai hanesan kritikus liu iha forum internasional. Hahu husi tinan 2002 to’o iha tinan 2009, ema kontinua nafatin levanta kestaun difamasaun nebe sai hanesan ‘virus’ ida, tan ne’e sosiedade barak mak la konkorda ho normas hirak ne’e, basa tuir sidadaun sira nia hanoin katak ho situasaun ida hanesan Timor Leste sei fo vantajem liu ba ukun nain ‘do que’ sidadaun Timor Leste ka ema estrangeiru ruma. Realidade iha tinan 2009 ne’e, mosu alegasaun difamasaun kontra jornalista local, nebe akuja husi membru Governu atual, sai tiha hanesan topiku interesante ba ema iha Timor Leste laran nomos liu-liu iha estrangeiru. Sua Exelensia Presidente da Republika rasik bainhira hala’o visita ofisial ida iha Nova Zelandia iha fulan hirak nia laran hasoru kedas protesta husi jornalista sira nebe loron kalan akompanya situasaun politika, nst iha Timor Leste. Ema balu hahu haruka karta aberta ba Governu nomos Presidente da Republika atu tetu didiak asuntu ida ne’e.<br/><br/>Maibe liu-liu tan, relatoriu konaba implementasaun konvensaun internasional nebe Timor Leste ho brani tebes ratifika hahu iha tinan 2002 sei hetan mos ‘kritikan’ maka’as, Bele mos fo posibilidade sidadaun balu atu lori kestaun ne’e sai hanesan kestaun internasional iha sesaun Direitus Humanus nian iha Genebra se karik Governu la fo atensaun seriu ba asuntu ne’e (tinan-tinan ema individual ka grupu bele halo intervensaun ba asuntu violasaun direitu humanus, violasaun direitu civil politka nst iha Genebra). Tamba konvensaun hotu-hotu nebe Timor Leste ratifika bandu teb-tebes atu limita nomos isola ema nia direitu iha pais demokratiku hanesan Timor Leste.<br/><br/>Konkluzaun<br/><br/>Executive Order/Ordem Executivo nebe matebian Sergio Mello hasai bazeia ba poder nebe simu husi resolusaun Konsellu Siguransa Nasoes Unidas nian, hodi estabelese UNTAET, molok Timor Leste hetan restorasaun independensia. Regulamentus UNTAET, Directivas, Ordens executivas, notificacoes, nebe hasai iha tempu UNTAET sai hanesan diplomas legais tamba bazeia ba kbi’it boot nebe sai husi Resolusaun Konsellu Siguransa Nasoes Unidas.<br/><br/>Nu’udar membru ba Nasoes Unidas nian, Timor Leste halo tiha ona agrimentu lubuk ida ho Nasoes Unidas liu husi ratifikasaun ba konvensaun internasional. Ho konsekwensia mak Timor Leste tenki hakru’uk nomos halo tuir promesa hirak nebe hato’o tiha ona ba Nasoes Unidas atu implementa Konvensoes hirak ne’e ho didiak. Se karik la implementa konvensaun hirak ne’e Timor Leste sei viola prinsipiu ‘pacta sunt servanda’ nebe existe universalmente. Prinsipiu ‘pacta sunt servanda’ ( Pacta sunt servanda ne’e mai husi lian Latin, ho lian Indonesia karik ‘janji harus ditepati’. The Vienna Convention on the Law of Treaties, 1969, Preambule 3, prinsipiu ne’e mos regula iha Artigu 26 “Every treaty in force is binding upon the parties to it and must be performed by them in good faith/setiap traktat adalah mengikat terhadap para pihak dan harus dilaksanakan dengan itikad baik.”). Parte hotu (pais sira) labele uja normas internal atu sai fali razaun ruma nebe failla hodi lahalo tuir normas hirak nebe tratadus haruka. Provizaun hirak ne’e bele hare iha prinsipiu nebe koalia konaba ‘“peremptory norm of general international law” (ka jus cogens). Bain-bain prinsipiu ne’e ligadu liu ba asuntu agrimentu sivil nian maibe sistema Leis iha Timor Leste nebe aplika ‘sistema civilista/civil law system’ tan ne’e iha obrigasaun boot atu hakru’uk nomos halo tuir normas internasional hirak nebe ita rasik ho komitmentu asina.<br/><br/> <br/><br/> <br/><br/> Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0tag:blogger.com,1999:blog-1364819543487429118.post-32689339856248671672012-05-24T00:49:00.000-07:002013-05-18T17:30:35.376-07:00Violation of the Rule of Law And Criminal Justice in East Timor<a href="https://easttimorlawjournal.files.wordpress.com/2012/05/violation_of__the_rule_of_law_and_criminal_justice_in_east_timor_sayan_majumdar.pdf">Violation of the Rule of Law And Criminal Justice in East Timor</a>Editorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.com0