*Cosme da Costa Araujo
Edited version.
Susan Marx, Asia Foundation’s country
representative, last week wrote an article and published it on the Asian Foundation’s
website entitled “Firing of Foreign
Judges in Timor-Leste Threatens Justice System”, in an apparent response to the Resolution
No.11/2014.
After
a careful examination of all evidence available and follow up closely with the
development of “the case”, I find the resolution is within the boundary of the
Constitution and contrary to the claim made by the author, human rights NGOs
and activists, it does not breach any articles of the Constitution. Parliament
acted within its constitutional power of making political decision.
The
resolution is simply the formal presentation of evidence by the Parliament for
the Superior Council of the Magistrate (SCM) to consider and decide on of
whether the call for termination of the contracts of international judges and
advisers is justifiable. The ultimate decision still lies with the SCM. Days
after Parliament enacted the resolution, President of the High Court issued a communiqué
to the judges urging them to carry on with their work, while waiting for the
decision from the SCM.
Thus far I see neither Parliament nor Government
interfered with the competencies of the SCM (Art.121.3) and therefore I
conclude that there had not been any breached the Constitution (Articles 69 and
119). In my view, the author and pundits had overacted and jumped into a
premature conclusion that does not reflect the reality and latest development
of the case.
Pedro
Bacelar Vasconselor, a Portuguese constitutional lawyer, who helped with the
work of annotated Constitution of RDTL, “considered it is legal to carry out a
diagnostic auditing of the Timorese justice system including the suspension of
contracts of international judges”. He added that “the resolution is a small concern
of a bigger issue that leaders of the country preoccupy with”. Furthermore,
Timor-Lorosa’e Lawyers Association fully supports the resolution as it is for
the national interests. According to them, the resolution has no impact at all
at the judicial system.
If
one reads the entire Article 69, it does not only talk about “the separation of
power”, but also “interdependence” of sovereign bodies in exercising their
powers. I had no legal background, but I interpret “interdependence” to imply two
things – firstly, the check and balance between sovereign bodies exercising
their powers, and secondly, the cooperation among them to achieve the
fundamental objectives of the State (Article 6) - the national interest of the
country.
The Parliament or the Government could have pursued the easier
alternative. Instead of issuing the resolution, they could have just invited
all sovereign bodies of the State to discuss and come to a consensus decision
similar to the resolution No.11/2014. President of the Dili Court, in fact,
suggested this approach.
Furthermore,
the author argued that the underlying reasons for the enactment of the
resolution are (1) unfavorable outcomes of the court rulings, (2) saving face
as outstanding tax allegation was made by Government’s own adviser recently
arrested and (3) PM’s dissatisfaction with public prosecutors and KAK.
To
set the record straight, Bobby Boye, a Nigerian born US citizen, whom the
author allured to in point (2), was recruited by the Norwegian Ministry of Finance, under the Oil for Development Program, to help the
tax department in the Timor-Leste Ministry of Finance. The Norwegian could have
done better and exercise more careful due diligence. But you cannot guarantee
your systems and procedures are hundred percent bulletproof when dealing with
conman like Boye.
What is more shocking,
as Fairfax Media reported “at least dozen of people working for oil and gas industry new about
Boye’s chequered past as early as December 2010”. The paper added that “oil companies made their
inquiry and what they found about him was far more disturbing”. It was further revealed
“senior staff at Conoco Philips kept their matter secret and decided not to
pursue it with Timor-Lest authorities”. In any contractual arrangement, there
is an implied term that the oil companies are expected to do what is reasonably
necessary to inform the government of the Timor-Leste of the matter. But the
oil companies “refused to share the information” which is “shocking and
appalling”, said Pierre-Richard Prosper, a lawyer acting for Timor-Leste. We do
not know of whether “they held this to be used as some kind of leverage;
against whom and for what intended gain”.
In addition, a recent revelation by the
Australian paper Sydney Morning Herald that Roger Maguire
is suspected as a mole for oil companies while working at a tax adviser in the
Timor-Leste Ministry of Finance.
Putting
his criminal records aside, Boye’s tax assessments put oil companies in an
uneasy position as he discovered that, by taking advantage of the limited
capacity of the local staff working at the tax department, oil companies tried
to avoid paying millions of taxes. Boye managed to “force oil companies cough
up more than $350 million”.
While
the proceeding in Singapore arbitration court is continuing, I am not surprised
to see the unfavorable court rulings in Dili against the Government as the
disputes of such complex cases were presided over by judges and advised by
advisers that have “inadequate technical capacity” and found to have committed
“various incidents of judicial irregularities”.
Reading
through the article what I find so intriguing is that the author tried to link the
recent arrest of foreigners with the termination of contract of international
judges and advisers as “general dissatisfaction with expats or malae”. I read
this paragraph with a smile on my face and amazed how one could come to such a
shallow conclusion.
The author failed or may
omit to mention the fact the poor Stacey
Addison was not arbitrarily detained while traveling around the country on
her mission to save the poor animals. She was found with other passengers in a
car staffed with drugs. Prima facie
of the circumstance, a reasonably person would assume her to be innocent, until the strong evidence proves to the contrary. But relying solely on her
recollection of the events would not be enough. As in any other democratic
countries, which the author is from and familiar with; the normal follow up
process would be for her to go through investigations to gather more evidence
to support her case.
Tiago
Guerra is an interesting one as well. He was arrested for the suspicion
of money laundering. How would you make of a person when a day before transferred
$800,000 out of the country and the next day leaving the country with stash of
cashes and credit cards? These events have nothing to with “dissatisfaction
with expats or malae”. Compared to other countries, Timor-Leste is the one of
the more tolerant countries in the world towards foreigners.
And for those who are unfairly
dismissed, they may seek remedies under the Labor Law and Contract Law. But the possibility of suing the Government under
these Laws seems too remote as leading evidence indicates that the termination of
the contracts is reasonably justifiable.
Furthermore the resolution
has no impact at all in deterring investors from coming to Timor-Leste. The Government
had showed their goodwill by working hard to ensure the national stability and
create environment that is business friendly – by lowering tax, establishing
one-stop-shop SERVE that reducing number of days for business registration, and
promoting transparency in its budgeting, procurement, and international
assistance. The Government had not interfered with any court decision as in
past few years it had lost a number of court cases against local businessman on
the land and property disputes.
The author also argued “the
decision could threaten the government’s case for ASEA accession”. I see this line
of argument to be similar to the one made by Madhu Narasimha, whom
Ramos Horta refers to an obscure and pseudo Malaysian based academic. He argued
Timor-Leste should not join ASEAN because all the negativities he
listed out. If the author uses the issued resolution, which she claimed to
interfere and undermine judicial independence, as benchmark for Timor-Leste
accession to the ASEAN, then the existing member countries like Thailand and
Myanmar should be disqualified. In Thailand military toppled two democratically
elected governments and the ubiquities presence of military junta in Myanmar
that dominates the country’s political and economic life, of which I consider
as grave violations of “the principles of democracy” that warrant enough
evidence to relinquish their ASEAN membership.
I conclude this response
article by referring back to the first paragraph of the author’s article, which
I find very interesting. The author wrote “in
a dramatic challenge to the principles of
democracy, on Friday night, the parliament of Timor-Leste decided in a
closed session to fire all foreign judges and advisers in its justice system”. What
I would like to highlight here is the term “principles of democracy”. As of
today I still find this term to be confusing and discriminatory in its
implementation.
For
a simple minded person like me, democracy means respecting other country’s
sovereignty, but you can invade other countries as long as it is for national
and security interest. Democracy means respecting people’s privacy, but for national
and security interest you can spy on your citizen, other heads of states and
citizen of other countries. Democracy means religious freedom and tolerance,
but for national and security interest, you can ban Muslim women from wearing burga in public place. Democracy means
in Western world you can sue media for false information, but in fragile
countries like Timor-Leste such act is considered to kill media freedom. Democracy
means no discrimination, but for national and security interest you can create
immigration law that aims to stop “illegal aliens” crossing the borders. Democracy
means everyone has the right to live, but for national and security interest
you can detain and shoot anyone as long as they look or act like a terrorist
suspect. Democracy means everyone is equal before the law and has a right to a
fair trial, but for national and security interest you can detain and imprison
people without trial. Democracy means you protect your citizen rights to live,
but for national and security interest you detain and shoot them for
self-defense.
Democracy
means treat your neighboring countries with respect and fairness, but for
national and security interest you can bully and patronize them. Democracy
means giving money to others to do and give you favor is corruption, but
lobbying government and lawmakers for concessions and favorable treatment is a
democratic process. The list can go on forever, but I better stop here because
I become more confused now with this term “principles of democracy”. Then I
realize that Lee Kwan Yew of Singapore is right. Democracy is
context-dependent. Principles of democracy are not universally applicable and cannot
be imposed upon others. Principles of democracy must reflect the local values,
and local culture.
