Judicial reform in Timor-Leste is at a crossroads, and the path taken will determine whether one of the world’s youngest countries can develop an independent, accountable and competent judiciary. The choices it now faces were highlighted by the government’s sudden expulsion of international judges in October 2014 that some saw as political intervention and others as a necessary measure to deepen reforms that have been quietly taking place since at least 2013. Judicial reform is part of a larger process of transition from an older generation of leaders steeped in the experience of exile and resistance to a younger generation shaped more by the Indonesian occupation and the first decade of independence. The question now is whether both have the will to undertake the sweeping overhaul of the legal system needed. The detailed recommendations at the end of this report suggest a possible way forward.
The judiciary’s problems are rooted in the violent upheaval that took place in 1999 in what was then the Indonesian province of East Timor, after a United Nations-supervised referendum produced an overwhelming vote to separate from Indonesia. The UN assumed temporary responsibility for the country’s administration, placing many of the most essential judicial functions in the hands of international judicial officers and advisors. Fifteen years later, the judiciary of independent Timor-Leste was still heavily dependent on Portuguese-speaking international personnel. Then, in October 2014, almost all of the internationals still employed as judges, prosecutors, public defenders and investigators were ordered to leave the country within 48 hours. Trials in which international judges were participating were stopped. The country’s national judicial training facility for judges, prosecutors, and public defenders ceased to function. The fate of pending cases of serious crimes against humanity from 1999 was thrown into question. The mechanism for promoting judges, required for key positions in the judiciary including the eventual Supreme Court, ceased to exist.
There were two major interpretations of the expulsions. The first view, widely heard at the time, was that they were politically motivated to increase the government’s control over judicial functions and the legal profession. The second view, gradually gaining ground, is that the systemic problems were so severe and the dependence on internationals of dubious competence so great that political intervention was a prerequisite of real reform.
However one interprets the expulsions, there is a broad consensus across the government and political elite that major change is required and that the era of international dominance is over, leaving the Timorese to finally take full responsibility for their judicial institutions. The crucial question now is whether the current government’s planned reforms—in legal education, professional training and access to justice—will succeed in providing a judiciary that meets its citizens’ needs. The alternative will be “Timorisation” without meaningful reform.
This report is based on three months of primary and secondary source research, including a field visit and court monitoring in Dili, Timor-Leste during February 2015 by the authors, David Cohen and Leigh-Ashley Lipscomb. The authors conducted 39 interviews with representatives of the justice sector, civil society organisations, service providers, government officials, the United Nations and the international donor community. The Court of Appeal and the Judicial System Monitoring Programme (JSMP), an NGO, provided the majority of statistical data analysed in this report.