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EAST
TIMOR LAWYERS ASSOCIATION
Rua Martires da Patria, Colmera-Dili
Phone: +670 390 322537, Mobile: 0408 371 297
Email: haklaken@hotmail.com
PETITION TO BE ADDRESSED TO THE DONORS COUNTRIES FOR EAST TIMOR
Summary Background of Customs Border Controller Service Case
Recently, a civil case was decided by the judge in Dili District Court in accordance with:
1. East
Timorese law
2. The East Timorese Constitution (Article 165); and
3. UNTAET regulation No. 1/1999.
The civil
case was between the owner of cartons of cigarettes, Marcal dos Santos
as a plaintiff against Border Control officers as the defendant ("the
Custom Border Control Case". Based on the evidence submitted by the
plaintiff in the Custom Border Control case, the court made an order in
favour of the plaintiff in accordance with the civil law procedure of
East Timor (Article 178 Herziene Indonesia Reglement - "HIR"),
that is the judge in the Dili District Court can not decide a matter not
in issue before the court. The Court made an order of compensation as
well as return of the cigarettes with interest.
This decision was made ex parte the defendant, which is allowed by the
civil law procedure of East Timor and the East Timorese Constitution and
which was correctly followed in this instance. In accordance with Article
125(1) and Article 126 HIR if the court summons a party three times without
their appearance the court can proceed to make an order ex parte. The
Border Control Authority disputes the fact that the decision was made
ex parte.
As a consequence Border Control is refusing to execute the court order, in violation of the East Timorese Constitution (Article 118) that the rule of law shall prevail.
However, the Border Control Authority was given the chance to argue the case before the Court and should have taken that opportunity but failed to appear. As such, we contend that the Border Control Authority are subject to the Court Order.
Right of Appeal
Article 129(2) HIR stipulates that parties have fourteen days to appeal a court decision and the application to appeal should be filed in the Dili District Court. The decision was made on 22 February 2002. The Border Control Authority lodged an appeal on 24 May 2002 at the Court of Appeal, excessively out of time and in the incorrect court.
Article 199 Recht regalement Buitengewesten ("RBG") stipulates that if an appeal is not filed within fourteen days, the court decision stands and the order is enforceable.
Voluntarily Complying with the Court Order
Article 196 HIR and 208 RBG give the defendant notice in writing of the opportunity within eight days to voluntarily comply with the court order before it is forcibly imposed. The Border Control Authority ignored this option. As such, according to Article 7(1) and (2) of legislation no. 20/1970 and Article 199 RBG, the Court required the parties to appear and a final opportunity is given to the defendant to comply voluntarily. The Border Control Authority failed to appear on this occasion and ignored the Court order.
Execution of the Court Order
As the Border Control Authority failed to comply with the above process of complying with the order, an attempt was made to enforce the court order and seize the goods by the police, Court clerk and the plaintiff's lawyers in or around August. However, the Border Control officers refused to comply with the Court order, contending that the Court order did not apply to them, as they are a government institution. On the return of the police, clerk and plaintiff's lawyers to the prosecutor with this information and the subsequent relay of the information the investigating judge a warrant was issued for the arrest of the three relevant Border Control officers. However, this arrest has not occurred.
Intervention of the Government
In this case it is apparent that the Government of East Timor has intervened by directing the Border Control Authority not to comply with the decision of the court as they contend:-
1. That
the decision should not have been made ex parte;
2. That the summons to the officers was not in a language that they understood;
3. That the decision was incorrect; and
4. That the presiding judge does not have capacity to decide the matter.
Due to this intervention the Border Control Authority have continually refused to be subject to the order of the Court.
As a consequence of the government's intervention and the fact that the matter has still not been resolved the East Timor Lawyer's association has taken strike action. This is because:-
A) We believe
that the Border Control Authority and the government are in contempt of
court; and
B) If no action is taken the rule of law in East Timor is in jeopardy.
Recommendation to donor countries
The members of the East Timor Lawyer's Association are concerned that:-
1. The East Timorese government does not have the requisite political and good will to promote and uphold the rule of law in East Timor;
2. The intervention of the government in the Border Control Case implies that they do not respect democracy and the integrity of the court system;
3. The government used their political power to eliminate the principal of equality before the law;
4. The government does not possess the requisite transparency and consistency to properly uphold basic human rights and the law and order of East Timor;
5. The government does not respect the principle of separation of powers; and
6. The East Timor Lawyers Association are afraid that should this pattern continue anarchy will reign and the government will become a dictatorship, with a consequence that in the future members of the community will not be able to participate in the decision making process.
Considering the above concerns the East Timor Lawyers Association recommend that donor countries review the allocation of their funding. Specifically we would suggest that funding to the justice sector be conditional upon the government upholding the rule of law and the principle of separation of powers.
This petition is signed by all members of the East Timor Lawyers Association consisting of:-
1. LIBERTA Consultant & Advocacy ………..…………………………………
2. Legal Aid Ukun Rasik An …………………………………………..
3. Yayasan HAK …………………………………………..
4. Public Defender …………………………………………
5. Lembaga Bantuan Hukum Timor Lorosae …………………………………………..
6. Tane Timor Consultant & Advocacy …………………………………………..
7. Fortuna Consultant & Advocacy …………………………………………
8. Justice and Peace Commission ………………………………………….
9. LAIFET ………………………………………….