Responding to Susan Marx’s Article “Firing of Foreign Judges in Timor-Leste Threatens Justice System”

*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.