PART III POSTCONFLICT ADMINISTRATIONS IN PRACTICE
Chapter 10. Th e Rule of Law and Judicial Reconstruction
A. Re-establishing the Judicial System
2. Creating a Timorese Judiciary from Scratch
The violence in East Timor in September 1999 after the popular consultation on the territory’s future status resulted in the destruction of an estimated 70 per cent of the physical infrastructure.880 Militias sympathetic to the integration of East Timor into Indonesia, backed by the Indonesian military, embarked on a large-scale, scorched earth campaign of reprisal, destroying virtually all the judicial infrastructure, including all court equipment, furniture, registers, records and law books during the hostilities.881 The situation in East Timor required the judicial system to be completely rebuilt from scratch. UNTAET’s mandate explicitly mentioned the administration of justice.882 One of the first questions that needed to be addressed was which laws would be applied, which is, as rightly pointed out by the then Special Representative, a difficult question: “what law applies in a country that does not yet exist?”.883
(a) ‘What Law Applies in a Country That Does not yet Exist?’
Like UNMIK’s approach towards the definition of the applicable law and with the same rationale,884 the first UNTAET Regulation adopted the principle that, until replaced by UNTAET regulations or subsequent legislation, the whole body of Indonesian law would apply in East Timor, as that was the law applied in East Timor before 25 October 1999. Indonesian law was nevertheless applicable only provided that it did not conflict with the internationally recognised human rights standards enumerated in the first UNTAET Regulation, the fulfilment of the mandate given to UNTAET under Resolution 1272, or the present or any
880 World Bank, ‘Report of the joint assessment mission to East Timor’ (8 December 1999), p. 15.
881 See in general for an overview of the situation upon arrival: Strohmeyer, H., ‘Collapse and reconstruction of a judicial system: the United Nations Missions in Kosovo and East Timor’, 95 American Journal of International Law 46 (2001), p. 50.
882 SC Res. 1272, UN Doc. S/RES/1272 (1999), para. 1: UNTAET was ‘endowed with overall responsibility for the administration of East Timor and [. . .] empowered to exercise all legisla- tive and executive authority, including the administration of justice’.
883 Vieira de Mello, S., ‘How not to run a country. Lessons for the UN from Kosovo and East Timor’ ( June 2000).
884 Strohmeyer, H., ‘Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor’, 24 University of New South Wales Law Journal 174 (2001).
other regulation or directive issued by the Transitional Administrator.885 The choice of applying Indonesian law was based on practical considerations, tak- ing into account that the few remaining lawyers were graduates of Indonesian universities, that the majority of the population was familiar with Indonesian law, and that Portuguese law had not been applied in the territory for almost 24 years.886
The East Timorese did not reject the legal system of the former regime, as the Kosovo Albanians did. Nevertheless, the problems with respect to the interpreta- tion of the existing laws, especially the criminal and criminal procedure codes, in the light of international human rights proved difficult. The decision to apply Indonesian law equally encompassed an obligation for UNTAET to familiarise itself with Indonesian law. As UNTAET did not have the capacity to under- stand and implement Indonesian law, the problem was apparently sidestepped by UNTAET’s decision to legislate extensively in various areas without actually taking into account conflicts with applicable Indonesian law.887 For example, although several international and national actors had proposed using the Indo- nesian Code reviewed in the light of human rights standards, UNTAET decided to draft an entirely new Code of Criminal Procedure, which took almost a year.
The result was naturally the difficult application of the existing Indonesian Code of Criminal Procedure, which was formally applicable in the transitional period, but required to be directly interpreted by local judges in the light of applicable human rights law.888
(b) Emergency Measures
The working method in the emergency phase was quite similar to that in the case of Kosovo, for the obvious reason that Vieira de Mello had been the interim Special Representative of the Secretary-General in Kosovo until 15 July 1999.
Vieira de Mello created a ‘Transitional Judicial Service Commission’ to recom- mend candidates for provisional judicial or prosecutorial office, to provide advice on the removal of judges or prosecutors, and to prepare a ‘Code of Ethics’ for judges and prosecutors.889 The Judicial Service Commission was composed of five individuals, three of East Timorese origin and two international experts.
As a result of the departure of Indonesian lawyers, judges, prosecutors and clerks and years of ethnic and political appointments in the judiciary, there
885 UNTAET Regulation 1999/1 on the Authority of the Transitional Administration in East Timor, UN Doc. UNTAET/REG/1999/1 (27 November 1999), section 3.
886 Morrow and White, supra note 390, p. 8 and Strohmeyer, supra note 881, p. 58.
887 See Morrow and White, supra note 390, p. 10.
888 Ibid., pp. 11–12.
889 UNTAET Regulation 1999/3 on the Establishment of a Transitional Judicial Service Com- mission, UN Doc. UNTAET/REG/1999/3 (3 December 1999).
were almost no jurists left in East Timor who had sufficient experience in the application of the law. Upon its arrival, UNTAET began the difficult process of identifying qualified personnel for the judiciary. After a week, following a word of mouth campaign and voluntary action by INTERFET to drop leaflets from aeroplanes throughout the territory, 17 jurists had been identified. Only a few of them had had previous experience in legal practice, and none of them had served as judge or prosecutor.890 On 7 January 2000, the Transitional Administrator appointed the first judges for an initial and probationary period of two years.891 Prosecutors were appointed shortly thereafter. It is also interesting to note that, as in Kosovo, no international judges or prosecutors had initially been appointed, as the focus was on creating an exclusively East Timorese judiciary. This however, was not sustainable as the judges appointed lacked sufficient practical experience, and ultimately international judges were introduced into the Timorese judiciary, although these were principally appointed to handle sensitive cases dealing with past crimes. We will come back to this in a next section.
The re-establishment of the court structure was largely influenced by the avail- ability of competent judicial personnel. Interestingly, the judges and prosecutors had been appointed prior to the establishment and design of the new judicial structure. At the time of their appointment, there was no court structure within which they and the lawyers could operate. An obvious lack of guidelines on working methods was also particularly problematic, especially for the investigat- ing judges, an institution that did not exist in the Indonesian judicial system applicable until then. East Timor had to wait until March 2000 for a transitional court system to be established under an UNTAET Regulation.892 The Court structure designed by UNTAET originally consisted of eight District Courts and one Court of Appeal. Due to a lack of competent judges and resources, the number of District Courts was subsequently reduced to four.893 As in the Kosovo emergency phase, UNTAET Regulation 2000/11 provided that “[f ]or a transitional period and until otherwise determined by the Transitional Adminis- trator, the judges appointed to the District Court in Dili shall have jurisdiction throughout the entire territory of East Timor”. The first hearings took place in the Dili District Court in May 2000, and as from June of the same year the
890 See for an overview of the emergency phase in East Timor: Strohmeyer, supra note 881, p. 54.
891 Ibid., p. 54.
892 UNTAET Regulation 2000/11 on the organization of courts in East Timor, UN Doc.
UNTAET/REG/2000/11 (6 March 2000).
893 Dili, Baucau, Suai and Oecussi. UNTAET Regulation 2000/14 amending Regulation No.
2000/11, UN Doc. UNTAET/REG/2000/14 (10 May 2000). The Oecussi district is in fact an enclave in West Timor.
three other district courts also started functioning. The existing court structure was largely maintained by Timor-Leste upon independence.
(c) Mentoring and Mandatory Judicial Training
UNTAET’s approach was again fairly identical to the one UNMIK favoured.
Following UNMIK’s model, UNTAET officials equally preferred to rely on local capacity only, and established a three-tiered training programme consisting of initial training prior to or upon appointment, continuous training while in office, and a programme of mentoring by international experts. Before the appointed judges, prosecutors and public defenders took office, UNTAET organised a brief training course of one week in Indonesia and Darwin in Australia.894 This was nevertheless clearly insufficient, as most of the appointed judges held law degrees from Indonesian universities but had no practical professional experience at all.
In May 2000, the Director of Judicial Affairs launched a more comprehensive training programme to address both immediate and long-term needs with regard to the magistrates holding office, comprising both traditional teaching and a mentoring programme.895 The mentoring programme introduced in May 2000 was intended to provide support and advice by international judges, who served as ‘shadow’ judges, prosecutors and public defenders for their East Timorese col- leagues. This mentoring programme faced several difficulties mainly by reason of limited financial resources and the difficulty in finding experienced international lawyers to serve as mentors for the appointed magistrates.896
In order to provide a more coherent and comprehensive framework for the training of the judiciary, a Judicial Training Centre was established after the independence of East Timor. The Judicial Training Centre, mandated with the continuous training of already appointed judges and prosecutors, was formally instituted as an independent body in 2004. Its main purpose was to provide a two and a half year long training course to be undertaken by appointed magistrates in order to be eligible for permanent appointment and gradually take over the tasks of the international judges.897 However, none of the 22 judges who par- ticipated in the first training programme managed to pass the exam and obtain
894 See Dahrendorf et al., supra note 496, para. 233.
895 Ibid. The training programmes were subcontracted to the International Development Law Organisation which organised courses on criminal law. See on this: IDLO, ‘Lessons learned on judicial & prosecutorial reform in post-conflict countries’, 2 Development Law Update ( June 2004).
896 Dahrendorf et al., supra note 496, para. 233.
897 See Hasegawa, S., ‘Speech Delivered at the Opening Ceremony for the Judicial Training Centre ( JTC)’ (7 September 2004).
the required qualification for conversion to permanent status.898 A few months later, all Prosecutors and Public Defenders who had followed the training course equally failed the written test and were therefore obliged to stop acting in the courts.899 Equally, several reports stated that in spite of their failure to pass the examinations after the training period, many of the judges and prosecutors were still handling cases, assisting the international judges and prosecutors.900
While the mandatory character of the post-appointment training was, in comparison to Kosovo, clear progress in ensuring the continuing training of appointed judges and prosecutors, it posed a great number of problems con- sidering the already small number of magistrates. In addition, the Ministry of Justice favoured training in concentrated long periods, impeding the functioning of some of the District Courts.901 In June 2002, for example, the entire judi- ciary was shut down as all judges and prosecutors had to attend a compulsory training course on the new constitution, leading to the release of suspects that were held in police stations because of unavailability of judicial review within the required time period.902 The creation of a viable justice system was severely hampered by the absence of qualified magistrates.