Next month – our northern neighbour is celebrating it's first birthday as a free country. But while there's much to celebrate – the country's justice system is struggling. Critics say the government isn't doing enough – to bring those responsible for past violence – before a court of law. A multi language community, a hydrid legal inheritance and lack of funds – are contributing to a slow moving, unpredictable legal landscape.
Transcript:
Damien Carrick: Hallo, and welcome to The Law Report.
Next month, East Timor will mark its first anniversary of independence, the independence achieved only after much sacrifice. But as the East Timorese approach their second year of self rule, considerable dissent has begun mounting against the government of Prime Minister Mari Alkatiri. Internal political sniping is rife, and in recent months, violence has once again returned to the streets.
The Alkatiri government has taken steps to satisfy the people's desire for justice after the long years of Indonesian oppression. But many critics, both at home and abroad, claim that those measures have been too few and at times, half-hearted. And, as Antony Funnell reports, there's increasing concern about the direction in which the Administration in Dili is taking the country and its struggling legal system.
Antony Funnell: This is East Timor only a few short months ago. The streets of the capital, Dili, erupting in violence.
For many in Australia, the idea that East Timor was not well on its way to peace and self-sufficiency came as something of a shock. For those working within East Timor's fledgling justice system however, the violence was not as unexpected. A release of frustration in large part fuelled by a continuing public perception that injustice did not depart the tiny island with the dreaded TNI, the Indonesian military.
Many prominent members of the Timorese intelligentsia, civil libertarians and international observers, have become increasingly worried about the growing level of government interference in legal matters. Of most recent concern has been the Alkatiri government's refusal to back the country's Serious Crimes Unit in its lodgement of charges against East Timor's former governor and seven key military figures including the former Indonesian Minister for Defence, General Wiranto. In fact, not only did the new government in Dili fail to throw its support behind the Serious Crimes Unit, it actively went out of its way to both attack and diminish it, in a very public way.
On March 5th this year, The Jakarta Post reported on a visit to Indonesia by Foreign Minister, Jose Ramos Horta, in which he advised the Indonesians...
Reader: Within the framework of our constitution, we will try to find ways and means how the issue of justice is served, but also to avoid in the pursuit of justice, any misunderstanding between Timor l'este and Indonesia.
Antony Funnell: Worse still for those seeking international justice, the country's President, former guerrilla leader, Xanana Gusmao, went further, actually apologising to the Indonesian government for the indictments.
Reader: They did not inform me; it's not East Timor's policy. I've repeatedly stated that I don't consider the International Court and even less so one in Timor, a priority when we are faced with such problems in this period of construction.
Antony Funnell: Such apparent political pragmatism worries many, because of the dangerous precedent it sets. It's not hard to understand the people's frustration with the way the War Crimes issue has developed on both sides of the Indonesia-East Timor border. A War Crimes Tribunal of sorts has been under way in Jakarta for the past year. It's been Indonesia's first-ever Human Rights Tribunal, but its achievements have been questionable. Eighteen people have so far been indicted, 11 of those acquitted, with only 5 people convicted so far, all of whom have their freedom while awaiting appeal.
Of the senior military figures indicted, each was charged only with the crime of failing to prevent two 1999 mass killings. In Dili, the UN-established Special Panel for Serious Crimes, the court to which the Special Crimes Unit answers, has so far managed to only complete two cases, despite the fact it has hundreds of indictments on its books. Those two cases have seen 13 convictions, all East Timor militia, because the Serious Crimes Unit has no power to enforce deportation of Indonesian accused, and has no authority to investigate crimes committed before 1999. There is no court charged on either side of the border, with bringing to justice the perpetrators of the systematic violence which took place in East Timor between 1975 and 1999.
It's hardly surprising then, that in recent months there have been numerous petitions calling on the Alkatiri government to rethink its position, and to work with the UN to establish a full-blown International War Crimes Tribunal. East Timor's struggling legal practitioners have been at the forefront of the charge. Buenevides Correira Barros is the President of the East Timorese Lawyers' Association, and last year led a three-month lawyers' strike against the government.
Buenevides Correira Barros: Let the people decide, let the victim decide whether the East Timorese need an International Tribunal to be established or not. Because I think on the ground, on the victims side, they say that we need International Tribunal to be established to prosecute the perpetrators, otherwise no justice for the victims since 1975, we need International Tribunal to be established, because it's been running in Indonesia, in the Indonesia ad hoc court is not possible to prosecute all the perpetrators in East Timor, and particularly the military, the officials in the Indonesian military.
Antony Funnell: It's a view shared by the Dili-based Judicial System Monitoring Program, a body which was meant to act as the eyes and ears of the international community during the bedding-down period for East Timor's judicial apparatus, but which has increasingly found itself acting as a public opposition to the Alkatiri government's actions. JSMP lawyer, Helen Donovan.
Helen Donovan: I think that they demand justice and that has been given as one opportunity for getting that, and they see the failure of the ad hoc court in Jakarta, and it seems that what other alternatives are there, and I think that's why you get the call as opposed to necessarily a firm or deep understanding of what international tribunals are and what they entail, and what their mandate might be or what their power might be. It's just basically frustration at the failure, or perceived failure of every other attempt so far to deliver genuine and widespread justice.
Antony Funnell: High up in the mountainous Liquica district, the villagers are used to fear and injustice. Following the withdrawal of the Indonesian military in 1999, there was a sense that both had run their course, but within the last year, bands of militia have returned from the border region and local people have begun wondering when the perpetrators of crime will ever face court.
What the government has offered instead of a proper International Crimes Tribunal has been a series of Truth and Reconciliation ceremonies, events that often involve little more than talk and the symbolic killing of chickens. It's in this environment that the JSMP is trying to perform its other major role: to educate and inform average East Timorese about the workings of the legal system. It's a difficult task, given the country has little historical experience of justice. And according to Helen Donovan, it's been made all the more difficult by the point-blank refusal to establish an International Crimes Tribunal. As a result, she says, the new justice system in East Timor has been lumbered with the reputation of its predecessor.
Helen Donovan: Its associated with the Indonesian regime and it's never been used as a tool for delivering fair or just outcomes before, and so people don't have cause to believe overnight that that's changed, and because they associate it with a corrupt system where the players are not there to deliver just and fair outcomes to the community.
Antony Funnell: How difficult is it for your organisation members to get around and try and convince people of that? I mean what sort of activities do you undertake to try and convince people that it is worth pursuing things through the system?
Helen Donovan: I think it is very difficult, because the base level of knowledge is so limited. People don't even understand what the role of a prosecutor is, or the role of a defence lawyer is. Most people have no concept of what a lawyer is, and so when you're starting with that level, it's very difficult to try and build confidence and faith in the system. Also the process is moving very slowly, especially in relation to serious crimes, and so people on the ground are not seeing things happening, and they think three years have passed and now as well militia are returning from West Timor, and they're not immediately arrested necessarily because these investigations processes are difficult, and I think that further undermines their faith, because they think, Well nothing's happened, nothing's changed. Of course that's not true, things are happening slowly, but the process is very much an incremental one.
Antony Funnell: It's just after 8pm at Darwin airport, and lawyer, Gwynne McCarrick has just returned to Australia on a plane from Dili, full of disappointment and frustration.
Gwynne McCarrick: As far as the people are concerned, they've seen no benefit for independence for themselves, they're seeing a government that's very much top heavy and not listening to the concerns of the people.
Antony Funnell: Normally based in Hobart, Gwynne has been working free of charge as a public defender for the Serious Crimes Unit in East Timor. Her return home was quick and unexpected, but after months of frustration, she found herself no longer willing or able to continue her role.
Gwynne McCarrick: There are a number of problems. Firstly it's a Serious Crimes special panel which is trying to operate on a shoestring budget. There are insufficient judges, there is no working appeals chamber, and within Timor there's been a number of prosecutors and jurists who have not been sworn in by this present government. It's twofold: it's a lack of financial support but also a lack of political will from the domestic government. There isn't any desire to see this UN-led justice system, there's no political momentum behind it.
Antony Funnell: Mid-morning in the hearing rooms for the Special Panel for Serious Crimes, and nothing much is happening. In fact, nothing much can happen because while there are two available courtrooms, there is only one judicial panel, and while those involved in putting together the cases which appear before the panel are trying their best, the lack of governmental priority given to the panel's operations is resulting, according to Gwynne McCarrick in grave misjustice.
Gwynne McCarrick: The principle of innocent until proven otherwise is simply lost in a process where accused persons have to spend three years in custody awaiting trail. I've been defence counsel on a case referred to as Lotoloy, that's the district in which the alleged events occurred. There have been two accused which have pleaded guilty and my client maintained his plea of not guilty. This has been one case, a priority case, and nothing's been heard while this particular trial is being heard. If there were a sufficient number of judges on the bench, you could have two chambers hearing matters, but at present there is only one chamber, consisting of one East Timorese and two international judges, and as I say, no appeals chambers, so again, the rights of the accused are seriously under threat where they cannot appeal the sentence that they ultimately receive.
Antony Funnell: That lack of a working appeals process is also at the centre of concern for East Timorese lawyer, Cancio Xavier, a public defender in the Dili District Court.
Cancio Xavier: A lot of cases we do appeal, but at no realisation because there are no judges to provide, and for this moment, nobody to set up. But we're hoping the East Timor government will set up as soon as possible because this is the main problem. If the appeal court will not be applied, there will be a problem, a serious problem.
Antony Funnell: The judicial system monitoring program agrees the lack of a working appeals court is a key problem for the new nation, but it says in fairness, the United Nations must also share some of the blame for its failure to materialise. Helen Donovan again.
Helen Donovan: A lot of really fundamental decisions are just going unreviewed and then they are repeated again and again and again, and I think to correct those mistakes further down the track, if indeed they are viewed to be mistakes, will be really difficult, because people have already established a pattern and they're not used to being subject to review and they're not used to a system where accused and the prosecution have a genuine right of review. The blame cannot be laid entirely at the feet of the East Timorese government, UNTAET itself was very slow to take the necessary steps to appoint the judges. I think there's just a cumbersome bureaucracy, there's a lack of foresight, I don't think it was afforded the sort of priority that it should have been, and so when one judge would leave or their contract would expire, new staff would only be sought perhaps a month after they'd left, but certainly not before their contract was expired, so there was just no planning, which I think is evident in fact, that they just did not see a court of appeal as a fundamental aspect of a working judicial system. And then the new government has inherited that problem. They also have their own ideas about who should be on that court of appeal or what sort of judges might fill those positions, and that in itself causes delays to some extent.
Antony Funnell: East Timor is the world's sixth poorest nation. It desperately needs money. But according to critics, the Alkatiri administration's slow pace of legislative reform and continual interference in the workings of the judicial system have actually impeded economic growth. One year into full independence, and the government in Dili is yet to resolve the thorny issue of land ownership. Despite numerous promises, there is still no new land ownership legislation, leaving the whole question of who owns what in East Timor up in the air.
The current system recognises both Indonesian and prior colonial title to land, and this has led to considerable conflict. It's a problem that mainly affects the major population centres, but disadvantages many ordinary Timorese along with foreign investors and the more well-off. Not being able to prove your ownership of the land on which you live or work can influence many basic things, including an ordinary East Timorese person's ability to gain access to much-needed financial loans.
Right next to Embassy Row, and overlooking Dili's majestic waterfront is the newly-built Esplanada. It's an upmarket boutique-style hotel employing numerous East Timorese and built and operated by Australian Ashley Rees.
Ashley Rees: Your average East Timorese is having trouble proving that he owns property or she owns property, so therefore the banks are very challenged to lend people money, which gets an internal economy bubbling away. So it's something that really has to be sorted out quite quickly, and given what's occurred lately, potential investors here are going to be turned off if land and property isn't sorted out. There's a variety of agendas and issues that they can go through to get this up to scratch; it's not an easy issue, but it's a brave issue. Whatever legislation they put through will not satisfy everyone, there's going to be people who miss out, but they have to be brave enough to be able to say, 'Right, here's a line in the sand, this is a process we go through, after that, that property's is either passed on or taken back, and that's it.' That person, via the courts or whatever, owns that property. And that's something that could have been done probably a lot quicker when the UN was here, but they had many other issues that they had to deal with, but it's essential, it's a major, major obstacle for investment here.
Antony Funnell: Further down the Esplanade, not far from the national parliament is another Australian operated hotel, the Hotel Dili. Manager, Gino Favaro, has had his own problems with the existing land ownership arrangement.
Gino Favaro: It's taken a long time for some cases to get to court. And then they're not heard in the best manner possible, and the...
Antony Funnell: Gino spent a great deal of time and money on legal fees trying to prove his ownership of a large block of land neighbouring his hotel. His family bought the block in Portuguese colonial times but someone else has claimed it. His main frustration isn't just the lack of clear new legislation governing land ownership, it's the competency of those who sit on the bench.
Gino Favaro: The Timorese judges that have been put into place by the United Nations weren't experienced in position of judges and the procedures, and have never even worked in the legal system inside a court house as lawyers. They were trained lawyers under the Indonesian administration throughout Indonesia, but they'd never worked as lawyers, they worked in different departments advising the heads of departments about certain things, but never actually worked in courts before. And then they were appointed as judges. Now some of them were very good, and they adapted quite well, but some of them, there were big question marks as to their credibility, as to their experience, their knowledge in order to carry out the job with the commitment and responsibility that's necessary for those positions. Then you've got a language problem and a culture problem in the middle of that. Most people represented in English, and the language of the courts were in Indonesian, all the documents have got to be translated into Indonesian and then if you've got a foreign person like myself, and there are many here through the court process, then they've got to be translated back into English and so on.
Antony Funnell: At the hearing rooms for the Special Panel for Serious Crimes, Jal Naro comes face to face with that language problem each and every day. His job, as Clerk of the Court, makes him responsible for the hiring of interpreters, one of whom he requires to answer my questions because he simply doesn't speak English.
Interpreter: We use four languages during the process at this Panel court, so it makes the court go very slowly, and that's why we need to ask the government to try and find any solution in order to minimise this problem, because we use four languages in the dealing criminal court will go very slowly in its process.
Antony Funnell: Nowhere are the problems of translation more evident than inside the Dili District Court. On this day, an Australian man is facing a judge over a driving incident.
When court proceedings begin, the man is immediately asked in English whether or not he can speak Portuguese. When he replies that he cannot, the court proceeds regardless. Finally, the man interjects, not only to protest his inability to understand what's going on, but also his lack of access to legal representation.
Man: ... state my case because I have a lot to say.
Antony Funnell: Outside the court room, many other non-Portuguese speaking people sit patiently on wooden benches awaiting a similar experience.
Antony Funnell: The Alkatiri government has spent much time and effort trying to reintroduce Portuguese as a national language, despite the fact that most East Timorese don't understand it, and actually dislike its links to the colonial past. To this end, the government has even begun giving special consideration to the hiring of judges and lawyers from Portuguese-speaking former colonies, such as Angola, and Mozambique, both of which have no great tradition of respect for civil rights and for the independence of the judiciary. The Alkatiri government admits its moves in this direction have caused a serious language problem, but their solution is not to use a language that people understand, it's to further enforce the teaching of Portuguese.
Acting Foreign Minister, Jorge Tempe.
Jorge Tempe: I do see that our language problem seems to be giving a great contribution on the difficulties of the legal system, because we try to train, the government is trying to train the judges by inviting judges from other countries like from Sydney, to train them, but to train them to be professional in their legal system, but the language is another problem, because these people are skilled, and whether his skill is integrated with the language, that is the question, not only in the legal affairs, but also in other departments, we face the problem of language. But we believe that three or four years, the problem will be slowly solved.
Antony Funnell: The East Timorese nation is only a year old. Most analysts agree that many of the problems that exist in the legal system today are not necessarily of the current government's making, but whether the deeply unpopular Alkatiri government has the will and desire to shape a just and fair legal system remains open for debate. Lawyer, priest, and regular visitor to East Timor, Frank Brennan, says the government needs time.
Frank Brennan: I think the East Timorese government is fully aware of the extent of the problems, they just know that these are problems which even if you had very highly trained and very experienced lawyers, would take you a very long time to resolve. I mean imagine being in a First World situation like Australia where you brought in new batches of judges and lawyers and said they had to use four languages in court, imagine saying that in terms of land dispute, you wouldn't just have Native title and the British Common Law system, but rather you'd have the Portuguese system, the Indonesian system, the Timorese system, the Japanese system, then you start to get an idea of just the extent of the complexity.
Antony Funnell: But there are those who continue to hold grave fears for the future of justice in East Timor. Like writer and Dili-based correspondent for the Fairfax newspapers, Jill Jolliffe.
Jill Jolliffe: You have a whole generation that has grown up never having experienced an elementary justice system. During the 24 years of the Indonesian occupation, a person could be arrested without trial, they could be tortured, they could be summarily executed, and there was no-one to appeal to, there was no rule of law in East Timor. So the fact that now some sort of a system has been set up, there are the basics there, but we still don't have those responsible for the crimes committed in 1999, let alone the 24 years before that, being brought to account means that a whole generation of East Timorese will feel cheated, and if no example is set of the transgressors, in particular those who tortured and brutalised East Timorese, then there was no reason to believe that the younger generation is going to honour the law, is going to look to the law and is not going to behave in a violent fashion.
Antony Funnell: People who would like to see an International Crimes Tribunal set up in East Timor say that the Alkatiri government has a responsibility to the people who have suffered, but does the Alkatiri government also have, do you think, responsibility to the international community? Because the people that committed these crimes, have been accused of committing crimes in East Timor, are actually being called to account for crimes against humanity, aren't they?
Jill Jolliffe: That's correct, yes, and it's not only the East Timorese people who suffered under them, it's also a matter of democracy in Indonesia. There are many people in Indonesia, Indonesian democrats, who would like to see these military figures judged for the crimes they committed in East Timor, because it's a matter for Indonesian democracy, but it's also a matter for international human rights. I think that many East Timorese leaders forget that they owe their liberty today to the many people in the world community who respected their standards, and people like Xanana Gusmao for example, won his liberty with the help of Amnesty International, organisations like that which worked solidly during these 24 years of Indonesian occupation, for liberty, for human rights to be observed, and they were very rigorous in that, but now those standards seem to have been forgotten by some of the Timorese leaders.
Antony Funnell: One of those who worked tirelessly for freedom and legal justice in East Timor throughout the 1970s, '80s and '90s, was scientist and activist, Rob Wesley-Smith. He's disillusioned with the course the country's leadership is taking, many of whom he once regarded as colleagues. Of significant concern, he says, is new legislation currently before the parliament, which will give the Alkatiri government the legal right to deport any foreigner engaging in activities which are 'of a political nature, or involved directly or indirectly the affairs of the state.' Rob Wesley-Smith believes the legislation will be used to silence critics and keep international observers like journalists, and the JSMP, at bay.
Rob Wesley-Smith: It's actually a breach of their own constitution, and it's a breach of the UN accords which they've signed as part of their constitution. So it's suggesting that the leadership there now really cannot tolerate any criticism, and I must admit it reminds me a bit of Robert Mugabe, so I'm very disappointed with that at the moment.
You marry it with statements by Mari Alkatiri that we fought and won and we've got a right to govern, and we expect to govern for 50 years, and that sort of thing. And even this term of government will go its full five-year term, well actually the people that were elected initially just to draw up a constitution, and they've extended. So you know, all that's extremely worrying. A lot of this has slipped through the parliament which is fairly non-functioning. Not many Fretelin members who have got the majority there, are prepared to stand up against their leader, and a lot of it's already been passed before really foreigners and other people were aware of it. And a lot of the suggestions for it have been drawn up by the Minister for the Interior, who was actually never elected to the parliament, he was just appointed. It's very poor, and as I say it's actually unconstitutional.
Antony Funnell: Rob Wesley-Smith.
East Timor's justice system may be strapped for cash and resources, and it may also have a government which at times is openly hostile to its development and independence. But despite all that, the Serious Crimes Unit it appears, won't be cowed. Just a few days ago, they issued another round of indictments, this time against 16 people accused of crimes against humanity, including 8 Indonesian soldiers and a former District Chief of Police.
Much has changed in East Timor in recent times, but as the country marks its first year of independence, at least some in the legal system are showing that the Timorese spirit of resistance and dogged determination against the odds has not been quashed.
Damien Carrick: Antony Funnell, with that special report on the state of the justice system in East Timor.