Judiciary under attack in East Timor

East Timor's defacto government last week stepped up its assault on the judiciary by blocking the reappointment of a senior judge who ruled against key budget measures last month.

The Superior Council for the Judiciary, a once independent but now politicised commission that oversees the functioning and composition of the judiciary, decided on 13 November 2008 not to renew the contract of Portuguese judge Ivo Rosa.

This was the same day Judge Rosa published the Court of Appeal's decision declaring a large part of the Gusmao government's 2008 budget unlawful and unconstitutional.

Judge Rosa is one of three foreign judges recruited by the United Nations to serve alongside seven Timorese judges in East Timor.

He was one of three Court of Appeal judges who unanimously ruled on November 13 that:

a) The government's creation of a so-called Economic Stabilization Fund was unconstitutional in that it was equivalent to creating a "secret fund" which is expressly prohibited by the constitution, and

b) Parliament's attempt to transfer more than US$290 million from the National Petroleum Fund was illegal as it breached key aspects of the law mandating sustainable use of petroleum revenue.

Prime Minister Xanana Gusmao and the President of the National Parliament, Fernando "Lasama" de Araujo have publicly criticised the judgement and foreign judges in particular. In the days following the court's ruling Mr de Araujo was reported on the national state-owned television broadcaster as having said that it was "time the government brought the Court of Appeal into line".

The decision not to reappoint Judge Rosa was taken to and initiated in the Superior Council for the Judiciary by the Council's interim head, Dionisio Babo Soares. Mr Soares is Secretary General of Xanana Gusmao's CNRT party and was national campaign director for the CNRT during last year's elections. He is currently an advisor in the Deputy Prime Minister's office.

Fretilin MP and spokesperson Jose Teixeira, an Australian-trained lawyer, said today he had never seen such a blatant act of political interference with the East Timorese judiciary.

"Dionisio Babo Soares is a political operative with no judicial training or experience, and, while holding some legal qualifications, has never practised as a lawyer. The Superior Council has only one of four members who is a judge. Yet he and the Council are passing judgement on the performance of a judge with well over ten years experience", Teixeira said.

"Soares may have extremely limited professional experience with the law, but he does have a proven track record of taking riding instructions from Prime Minister Gusmao. This decision that he was instrumental in is proof of that. All our information indicates that this is so.

"The involvement of such a prominent party-political figure in this decision is basis enough for Fretilin to challenge its soundness and legality."

Teixeira said the de facto government took advantage of the absence of Judge Claudio Ximenes, the President of the Court of Appeal, who is in Lisbon receiving medical treatment, to rush to get rid of Judge Rosa.

"The writing has been on the wall for some time now. We knew there would be moves on the judges involved in the budget decision, especially Judges Rosa and Ximenes. The defacto Prime Minister and the President of the Parliament have voiced their public displeasure with the decision. Now we see the result of their displeasure."

Teixeira said the decision also involved another member of the Superior Council, Cirilio Valadares, who is currently advisor in the Office of Prime Minister Gusmao.

"The de facto government, having stacked the Superior Council for the Judiciary with its political operatives, is now expected to move against Judge Ximenes and install a judiciary favourable to their administration", Teixeira said.

"How will we ever be able to enforce laws in this country with this type of political interference and disregard for the rule of law, the courts and the constitution? From our point of view this is only the tip of the iceberg, and the independence of our judiciary is under a genuine and unprecedented threat."