by firing of foreign judges
By Susan Marx
Dili, October 29:
In a dramatic challenge to the principles of democracy, on Friday night,
October 28, the parliament of Timor-Leste decided in a closed session
to fire all foreign judges and advisers in its justice system.
The National Parliament passed Resolution No. 11/2014, calling on the
government to audit the justice sector and immediately terminate all existing
contracts of at least 11 international judges
and prosecutors, as well as other international staff in the Courts, Public
Prosecutors Office, Public Defenders Office, Anti-Corruption
Commission, and the Legal Training Center.
In response, the government quickly passed Resolution No. 29/2014, an
echo of Resolution No. 11.
The stated legal basis for the resolutions was force majeure and national
interest but its unclear whether either is applicable
in this case.
On Friday, Timor-Lestes
National Parliament passed a resolution to terminate all foreign judges
and advisers in its justice system, opening a debate over the legality
of the resolution and the future of Timors independent judiciary.
While the legality
of the resolution is being questioned by a range of political and judicial
figures, the act of the resolutions from the parliament and the government
clearly undermines the principles of an independent judiciary.
There is deep speculation over the meaning of the resolution, but the
response seems to be conflating a number of issues.
On the one hand, some are interpreting this as an overreaction to the
unfavorable outcomes in a number of pending cases between the government
of Timor-Leste and the oil giant ConocoPhillips on matters pertaining
to the taxation of oil revenues.
Some say it is a case of face saving, given that much of the
assessments of the outstanding taxes
allegedly due to the government in the first place were in fact calculated
by the governments own (recently arrested) foreign advisor to the
Ministry of Finance.
Analysts point to Prime Minister Gusmãos growing dissatisfaction
toward the countrys public prosecutors and anti-corruption body
(KAK) as a possible motive for the blunt move.
Compounding the mystery
surrounding the developments, the Minister of Finance, Emilia Pires (a
close ally of Prime Minister Gusmão), recently returned to Timor-Leste
after spending months abroad, including missing the last two budget debates.
Coincidentally, news recently surfaced that her immunity from prosecution
for a corruption allegation would not be lifted anytime soon.
Certainly, no one
would argue that the legal system had been functioning perfectly, and
that having a large dependency on foreign judges, lawyers, and advisers
to run the system was ideal.
But initiating an impeachment of high court officials (foreign or otherwise)
sends a clear message to all justice actors particularly national
As such, despite a growing sentiment that other recent detentions of foreigners
could signal a general dissatisfaction with expats, or malae, the main
concern should be about the legality and not the
nationality involved in the matter.
The legal basis for
this decision is shaky at best, and likely unconstitutional.
The Constitution of the Democratic Republic of Timor-Leste protects the
principle of separation of powers (Article 69), guarantees the independence
of the courts (Article 119), and ensures tenure to judges (Article 121.3).
In other words, neither the parliament nor the government can legally
fire these judges the power lies only with the Superior Council
of the Magistracy.
For those affected who are not judges, prosecutors, or public defenders,
depending on the
types of contracts, other applicable legislation including the Labor Code
and contract law would still apply, neither of which were invoked.
The government has
not made a valid case for national interest, nor for a force
majeure, which is generally utilized for unforeseen circumstances such
as war, riot, natural disaster, strike, or so-called acts of God.
Civil society have come out strong against the apparent interference with
the justice sector.
Notably, the justice monitoring civil society organization, JSMP, held
a press conference urging the national parliament and government
to reconsider these resolutions and immediately take appropriate actions
to guarantee the independence of the judiciary.
Leading human rights activist, Jose Luis de Oliveira, in turn wrote this
article in which he questions both legal justifications cited by the resolutions
(force majeure and national interest) and alleges that the secret plenary
was in fact the second meeting, that it was preceded by a private meeting
attended by some parliamentarians at the prime ministers residence.
So far, what is known
is that only a handful out of the 25 MPs of the opposition party, Freitilin,
voted in favor of the resolution, and the others that didnt vote
for it have spoken out publicly on the appearance of interference
with the justice system.
According to local civil society organizations familiar with the events,
the chief justice of the Dili District Court has publicly stated that
the resolution is not legal, and the president of the Court of Appeal
has said the resolution has no legal standing.
Beyond the immediate
administrative impact that removing 11 international judges and prosecutors
and delaying formal training of new Timorese magistrates could have on
a notoriously backlogged legal system, there are also more far-reaching
implications for Timor-Leste.
One is the implied threat to national judges.
Second is that detention of foreign consultants and summary dismissal
of members of the judiciary threatens foreign investor confidence
something desperately needed if Timor-Leste wants to wean itself off its
The government is in the middle of a number of major investment projects
ranging from a $350 million cement plant to upgrading of major transport
infrastructure, and this move could seriously hamper confidence of potential
Third, the decision could threaten the governments case for ASEAN
The government may have inadvertently given Singapore, the staunchest
opposition to Timors bid to join the group, enough ammunition to
continue blocking its admission.
And finally, in the wake of a recent onslaught on media freedoms, this
interference with the justice sector begs the question: As one of the
remaining pillars of democracy in Timor-Leste, is civil society next?
First published in The Asia foundation Wednesday 29 October 2014
is The Asia Foundations country representative in Timor-Leste.