East Timor's most senior judge has ruled the new nation's legal system should be based on Portuguese law, not Indonesian law. The controversial statement was made during his verdict on an appeal of a Timorese militiaman convicted on involvement in murders and a massacre during the 1999 vote for independence.

Presenter/Interviewer: Anita Barraud

Speakers: Dr Tim Lindsay, Director of the Asian Law Centre and Associate Professor of Law at Melbourne University; Claudio Ximenes, East Timor's only Supreme Court Judge; Dionisio Babu Soares, from East Timor's Jurist Association; Longuinhos Monteiro, Prosecutor General

Barraud: When the most senior judge in the land handed down a verdict, contrary to common thinking, many associated with the legal system in East Timor reeled with shock. Dr Tim Lindsay is Associate Professor at Melbourne University and Director of the Asian Law Centre.

Lindsay: It's a nightmare, it means that there were decisions made pursuant to a law that didn't apply by institutions taking their authority from legal provisions that were not relevant. In other words the consequences directly are completely chaotic for East Timor.

Barraud: East Timor's only Supreme Court Judge Claudio Ximenes, who was trained in Portugal, says the common interpretation of the United Nations drafted legal system, adopted after independence is wrong. The UN did not recognise Indonesian sovereignty, referring to East Timor as a non autonomous Portuguese colony – therefore it follows Portuguese – not Indonesian law should be applied. So far all legal decisions, sentences and convictions made since 1999 have been based largely on Indonesian law. Speaking from a busy restaurant during Dili's lunchhour, Judge Ximenes says he cannot comment on the case or his verdict, but stressed his decision was based on considered legal argument.

Ximenes: Well the decision is taken on the legal arguments of interpretation and not on a political argument. So I've not taken a decision just because I have found out that the Portuguese law is better or more developed than Indonesian law or anything else.

Lindsay: I have to say that I think Justice Ximenes's reasoning is probably right. You can't have your cake and eat it, if you believe that Indonesia illegally occupied East Timor, then you can't have its law applying.

Barraud: Already coping with log-jammed courts, language difficulties and barely adequate resources, the judges' decision could overturn all current and previous legal decisions and sentences. Dr Lindsay says Judge Ximenes has perceived a lack of clarity in the laws drafted by the United Nations Transitional Authority in East Timor, and in the constitution.

Lindsay: The constitution and the UNTAET regulation both say simply that the laws that existed in East Timor at the time they came into effect will continue to apply until set aside. It's as simple as that. But neither of them say what those laws were, and this has left the East Timorese parliament and the judiciary with a problem. What law applied in East Timor in '99 and in 2002 when UNTAET regulations came in and when the constitution came in.

Barraud: The Judge's controversial decision related to a militiaman originally convicted of murders including the killing of a leading East Timorese activist and involvement in a massacre at a church in Liquica in 1999.

The prosecution was appealing against the murder conviction arguing the accused, Amando Dos Santos, should have been charged with murder as a crime against humanity. A number of other cases have since also ruled in favour of using the Portuguese laws. Dionisio Babu Soares, from East Timor's Jurist Association says there are strong arguments for using Indonesian laws despite its history of repression in East Timor.

Soares: Something that Judge Ximenes forgot was that Indonesia and Portugal had an agreement on the 5th of May 1999 where both countries actually agreed to handover their claim of East Timor to the United Nations. And if you look at 5th of May agreement, Article 11, it says that Indonesian laws in force upon the date of entry to first of this agreement.

Barraud: Mr Soares says this agreement to abide by Indonesian law while East Timor remained a special autonomous region has helped form the basis for the UNTAET law and the constitution. He admits the draft law does not clarify which law East Timor should follow – but what IS crystal clear are the Indonesian laws which should NOT be used, and they include specific laws relating to human rights, sentencing – including capital punishment, regulations on social organisations and security laws. He believes the fact that the exceptions were so carefully laid out implies that the laws of common choice would be – Indonesian. But Mr Soares is more concerned about the social and political implications of Judge Ximenes's ruling.

Soares: People are afraid that their rights, their claims to land and to properties and everything that actually came under Indonesia law will not be recognised by the current government.

Ximenes: When we are trying to deal with this ... and even in a country where the legal system is established, there is always interpretation ... it should be made and should be followed and interpretation should be made seriously.

Barraud: Does this mean that all cases that have currently and in the past been in East Timor courts since 1999, will they have to be re-tried?

Ximenes: No, the decisions which are finished are not possible to be changed, will not be changed. Changes could take place only on the cases pending on appeal.

Barraud: Judge Ximenes agrees his decision has enormous implications in an already overloaded legal system. It now threatens to divide the legal institution itself. Already the special panel on serious crimes has issued a statement indicating it will continue to abide by Indonesian law. The Prosecutor General Longuinhos Monteiro has filed an application to the Supreme Court for a clarification of the Judges verdict.

Monteiro: Hopefully yes he should change the decision he's taken in the Court of Appeal because it's quite embarrased all the justices, overall the judicial system in East Timor, because we'll be implicated not only the judges but also the defence counsel and the prosecutors who have no, knowledge on Portuguese law. Everybody's telling that of course through our constitution that the Indonesian occupation is illegal it's true, but no one is also saying that before it, the colonial occupation is legal.

Barraud: So you're saying that the Portuguese occupation was just as illegal as the Indonesian one?

Monteiro: Same thing, from my point of view it's no different between Indonesians and Portuguese, because we are fighting for our independence before Indonesians came in here.

Barraud: But Dr Tim Lindsay says the issue is now a political one.

Lindsay: There are huge risks in East Timor today between the Portuguese speaking mestizo elite and the majority of people who don't speak Portuguese. So there is a lot of resistance to the application of Portuguese law and language in East Timor, although it is nonethless proceeding. I'm glad Ximenes made this decision despite the short-term problems it's causing litigants, because it throws the ball back where it should be in the government's court. It's a political decision as to whether they'll apply Indonesian or Portuguese law. If the government doesn't like it then of course it won't. It must now at last make a decision as to what law will apply so there's a degree of certainty about that. And then we can move forward at least on that issue.