[TimorLesteStudies] New ETLJ Article: Timor-Leste:The Curious Case of the Fake Policemen

[Bu V.E. Wilson]

Wilson, Bu V. E. 2009. Timor-Leste: The Curious Case of the Fake Policemen. 2009 ETLJ 2
http://www.eastimorlawjournal.org/ARTICLES/Index.html

 -  <!--  /* Font Definitions */  @font-face 	{font-family:Tahoma; 	panose-1:2 11 6 4 3 5 4 4 2 4; 	mso-font-charset:0; 	mso-generic-font-family:swiss; 	mso-font-pitch:variable; 	mso-font-signature:1627421319 -2147483648 8 0 66047 0;}  /* Style Definitions */  p.MsoNormal, li.MsoNormal, div.MsoNormal 	{mso-style-parent:""; 	margin:0cm; 	margin-bottom:.0001pt; 	mso-pagination:widow-orphan; 	font-size:12.0pt; 	font-family:"Times New Roman"; 	mso-fareast-font-family:"Times New Roman";} a:link, span.MsoHyperlink 	{color:blue; 	text-decoration:underline; 	text-underline:single;} a:visited, span.MsoHyperlinkFollowed 	{color:purple; 	text-decoration:underline; 	text-underline:single;} @page Section1 	{size:595.45pt 841.7pt; 	margin:72.0pt 89.85pt 72.0pt 89.85pt; 	mso-header-margin:35.45pt; 	mso-footer-margin:35.45pt; 	mso-paper-source:0;} div.Section1 	{page:Section1;} -->   2009 ETLJ 2 Timor-Leste: the curious case of the fake policemen
  Bu V. E. Wilson[1]
  13 February 2009
  In less than a week the Security Council in New York will be debating[2] the United Nations Integrated Mission in Timor-Leste (UNMIT) mandate which is due to expire on 26 February. Although everyday security in Timor is greatly improved since the unraveling of law, order and the security institutions in 2006, the Timorese police (PNTL)[3] are weak, unaccountable and factionalised and there is little doubt that the current mandate will be renewed with few amendments. The current UNMIT mandate gives responsibility to the UN to, among other things, assist with the further training, institutional development and strengthening of the PNTL and the Ministry of Interior; as well as to assist the Government of Timor-Leste (GoTL) to conduct a comprehensive review of the security sector including the army (the F-FDTL), the PNTL, the Ministry of Interior and the Ministry of Defence.  
   
  There is, however, an elephant in the room. On 9 December 2008, in a little publicised Court of Appeal[4] decision in Timor-Leste[5] , a finding against defendant Adérito da Costa Ximenes Neto, Interim PNTL Commander Baucau[6] was overturned. Neto had been convicted, on 14 October 2008, of committing a false identity crime punishable pursuant to article 228 of the Penal Code[7]. He was sentenced to six months imprisonment, suspended for a period of 12 months. 
   
  The defendant, the most senior national police officer in Baucau, had originally been suspended on the order of the United Nations Police (UNPOL) Commissioner Juan Carlos Arévalo on 27 August 2008. The suspension followed completion of a disciplinary process against Neto which found practices carried out by him in violation of human rights. The following day Neto signed the suspension order and handed over his gun. However, upon the order of PNTL Police Inspector Henrique da Costa, Neto retrieved his gun from the armoury the same day; apparently the Commander General of the PNTL Afonso de Jesus did not “agree” with the initial suspension letter. Four weeks later UNPOL Police Commissioner Arévalo issued a second suspension notice to Neto. Upon receiving the notice on 1 October 2008 the defendant handed over his gun, car keys and SIM card and went home[8]. However after nine days he once again put on his uniform and returned to work. He was promptly arrested by UNPOL together with the Portuguese Republican Guard (GNR), and charged.
   
  UNPOL’s executive policing authority is derived from the Supplementary Policing Agreement (‘the Agreement”) between the Government of Timor-Leste (GoTL) and the United Nations signed on 1 December 2006. The Agreement provides for executive policing to be carried out by UNPOL until such time as the PNTL are reconstituted through a process of screening, mentoring and certification. The Agreement also determines that it is the UNPOL Police Commissioner, in consultation with the Special Representative of the Secretary General (SRSG) and in close collaboration with the GoTL, who is to decide when the phased handover of Units and Districts from UNPOL to PNTL can occur, based on PNTL attaining benchmarks that would make such a handover possible. UNPOL has been placed under considerable pressure to have PNTL certified and operational before there is any evidence of PNTL being ready.
   
  The Court of Appeal Decision found that as the Supplementary Agreement was not ratified by Parliament and promulgated as required by Articles 85 paragraph a, 9 no. 2 and 95 no. 3 paragraph f) of the Constitution of Timor-Leste (CRDTL) and subsequent publication in the Official Journal of the Republic did not occur, it does not have the force of law.  Consequently the UNPOL Commissioner did not have the legal power to carry out that suspension. 
   
  If the highest court in Timor-Leste has determined that the Supplementary Agreement is purely “administrative” and “non-binding” in nature this arguably means that all arrests and other executive policing decisions made by UNPOL personnel in Timor-Leste since 2006 may not be valid. This has massive implications for the already inchoate task of reconstituting the PNTL.  
   
  Extraordinarily, there has been little apparent interest on the part of the GoTL and no Timorese media coverage of the implications of the decision. The United Nations has remained remarkably tight-lipped about the decision and its implications, not wanting any more institutional unraveling on their watch.
   
  There is an argument that can be made that as the Timor-Leste legal system is a civil law legal system then the role of precedent is not as important as in a common law system such as found in Australia. The consequence would be that the decision only applies in the case of Neto and has no broader applicability. I would argue, however, that this is disingenuous and should not be used as an excuse on the part of either the GoTL or the UN for not clarifying a matter of such importance. It is, after all, a question of exactly who (theoretically) presides over the monopoly of force in Timor-Leste, something (once again theoretically) at the cornerstone of a country’s sovereignty. 
   
  Inconsistency is a hallmark of the Timor-Leste judicial and parliamentary system. Unlike this case, other contentious decisions made by the Court of Appeal have been very quickly addressed by the Timor-Leste Parliament e.g. in the case of Public Prosecutor versus Armando dos Santos[9]. Similarly other “international agreements” such as the one to establish the Truth and Friendship Commission with Indonesia were not ratified by Parliament.
   
  The decision has been muddied by the recent decision not to renew the contract of the presiding judge in the case, Portuguese Judge Ivo Nelson de Caires Batista Rosa. The decision by the Superior Council of the Magistracy not to renew his contract occurred in opaque circumstances, in what many believe was punishment for a previous decision[10] unpopular with the Government. However, as there has been no claim that the decision in the Neto case was not legitimate at the time it was made, this can be considered something of a distraction.
   
  There are also political reasons to revisit the Supplementary Agreement. Relationships between UNPOL and PNTL have not been particularly constructive, and have deteriorated since the shooting of President Ramos-Horta a year ago. Increasingly PNTL does what it pleases, regardless of what UNPOL might think..
   
  The Supplementary Agreement has been the subject of considerable criticism by members of the GoTL for some time. The handover to PNTL is high on the agenda at the moment but the mechanisms are unclear. Wishing away the political and legal complexities of the relationship will not make it any sweeter. If the United Nations is anticipating continuing it’s policing role in Timor-Leste (whilst promoting the development of the rule of law) it is imperative for it to be clarified if they have the power to do so before the renewal of the UNMIT mandate due on 26 February. Similarly, the Timor-Leste Government may like to know who is in charge of their police force.  It is, after all, important to be able to determine who is the real fake policeman.
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  Endnotes
   
  1. The author is a doctoral candidate at the Regulatory Institutions Network (RegNET), Australian National  University. Contact details: bu.wilson at anu.edu.au
  2. The Security Council debate is scheduled for 19 February 2009.
  3. Polícia Nacional Timor-Leste
  4.  The Court of Appeal in Timor-Leste is currently the highest court in the country. Although there is a provision for a Supreme Court and a Constitutional Court these roles are currently filled by the Court of Appeal.
  5. Case no. 95/CO/2008/TR
  6. Baucau is Timor-Leste’s second largest city after the capital Dili
  7. The Indonesian Penal Code is still in use in Timor-Leste. Article 228 states that “Any person who with deliberate intent wears distinguishing marks or performs an act belonging to an office he does not hold or from which he has been suspended, shall be punished by a maximum imprisonment of two years or a maximum fine of three hundred rupiah”.
  8. Although one of the arguments in Neto’s appeal is that he did not sign any documents between 1 and 9 October this is not the finding of the Court, there does appear to be some confusion on this matter.
  9. On 15 July 2003 the Court of Appeal found that the applicable subsidiary law in East Timor is the Law of Portugal, rather than Indonesia and that United Nations Regulation 2000/15 governing the conduct of Crimes against Humanity trials was invalid. It also  purported to expand the definition of ´genocide under international law. For further details see JSMP (2003a). The Court of Appeal Decision on the Applicable Subsidiary Law in Timor-Leste. Dili, JSMP.
  10. This decision was on the validity of the 2008 mid-year budget. For further details see http://www.laohamutuk.org/econ/MYBU08/BudgetRuledUnconstitutional08.htm
   
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  First published in the East Timor Law Journal on 15 February 2009
   
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