ETLJB 5 February 2009 - 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.
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.
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.
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.
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.
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?
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.
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.
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.
East Timor Law Journal
- Towards the rule of law in Timor-Leste!