Subject: Talitakum: Attorney General Interview on the Incidents of 4 December

Subject: Attorney General of RDTL, Longhinos Monteiro's Interview with Talitakum: There are three elements in the causes of the Incidents of 4 December - Talitakum - 29 Jan 03

Attorney General of RDTL, Longhinos Monteiro's Interview with Talitakum: "There are three elements in the causes of the Incidents of 4 December" ? Talitakum - 29 Jan 03 BY Maenio Calado

One of the priorities of the government of the Democratic Republic of East Timor for 2003 is law enforcement. Related to that, the spotlight is focused on law enforcement institutions in East Timor, on the police, the judiciary and the Attorney General's Department. To understand what legal work is being done in ET at the moment, Maini Calado from Talitakum, interviewed the Attorney General of East Timor, Longuinhos Monteiro, in his office. Why law enforcement is important, how the law is implemented, all of this was answered by the Attorney General, who is now in the middle of the public spotlight in relation to the case of 4 December 2002. In his simple office he explained a number of aspects at length, in a relaxed and friendly way. Here are some excerpts from that interview:

In his speech at the end of the year, PM Mari'i Alkatiri mentioned legal issues and the department of internal affairs as development priorities for 2003. What do you think about that? Yes, if that's the government program for 2003, I think it's very useful. But I hope it won't be like what happened in 2002, where politically, it was said to be a priority. But in reality in 2002, the government couldn't do anything positive to improve the image of legal institutions publicly. If the government has determined that, I will be very much in support of it. Only, I hope it's not like 2002.

Could this resolve the problem or in fact become a boomerang for the government itself? I say yes, because frankly, we are now working without direction. With only our individual skills to get our work done. As an example, I now need administrative assistance here. And I haven't received that assistance since last year. Of course without this, I will experience difficulties because I have to do extra work. To make the wheels of administration turn in this office, it's everything from photocopying to political problems. I have to handle all of it. I work alone and there is no staff here, except for the staff that are paid by Unmiset. And the government should note this issue. When Unmiset finishes it's mission here, everything in this room will be moved, including the desks, because they bought it.

You used to work in the Legal Bureau in the Indonesian period and now hold an important position in the same area. What's the difference? Obviously, in the past all of the rules of the game were established. There was also work discipline. So, we knew what our job descriptions were, what our tasks and functions were in carrying out work. There were no problems with the public service, because everything was already regulated so there were no significant gaps. Now, in fact it's essentially the same. Only, there are still a number of weaknesses. Since we became independent, up until the present, many institutions are not yet working on the basis of laws or one strong legal base.

So what legal basis are you using now? Provisionally, the Attorney General's has been working with Untaet regulation number 16, which is very minimal and incomplete as a regulation, to ensure that there is an independent institution. The proposal for the Attorney General's Bill that we have already sent should be discussed in parliament so that we can work properly. Without this, we can't work effectively and maximally. This is related to issues of recruitment of officials, salaries and other additional funds. All of this should be contained in one clear structure, so that the Attorney General's is spared intervention from any party.

So what effective steps have been taken by the Attorney General's in order to be able to work well? What I could do is to submit the proposal for the Attorney General's Bill to the government. And I did that six months ago. However, up until now I have not received a positive response about when the Bill will be discussed. As far as I know, that is the main effort that we can make. So, I think if that Bill is approved then that's enough. At least it will be an initial basis. That's better than us not having anything at all.

On another matter, the Ad Hoc court in Jakarta. It clearly did not answer the demands for justice of the victims. Obviously this is a test of the performance of the judiciary and the Attorney General's. How do you see it? The ad hoc court itself involved political problems. Because the ad hoc court in Indonesia was not formed on the initiative of the Indonesian government, but to answer the demands of the international community about justice and human rights problems that occurred in 1999. And that was by mandate from the UN. As far as I know, the court was only set up the Indonesian government to avoid undesirable pressure. In this case, to avoid an international court. So the Indonesian government tried to set up a court on an international level. But it had a special mandate, i.e. to consider all of the problems that took place in 1999.

So what about the performance of that ad hoc court? I observed that the working system for the process of investigation was very complex. In the ad hoc court, as we know, the public prosecutor was the investigator of serious crimes cases. What is strange was that the investigator had no initiative to investigate. All of this was based on recommendations from Komnas HAM (National Human Rights Commission ? ed.). So the ad hoc investigator was not independent, because there was intervention, or they had to follow orders from Komnas HAM in their investigations and in determining who was accused.

If that is the case, what other alternative measures are being taken by the Attorney General's to see that justice is done? As the Attorney General of East Timor, I can't make much comment. Our stance now is to not meddle with the competence of courts that constitute legal avenues in an independent country. The issue of its results, whether it improves the standard of justice or not, is a test and challenge that then must be answered by the Indonesian government itself.

Do the results that are decided by the ad hoc court have to be adhered to? Not adhered to, but respected. The question of whether it is successful or not, is not the responsibility of East Timor, but of Indonesia. Naturally all consequences will be answered by the Indonesian government.

What do independent legal institutions mean, in relation to the Government, the Parliament and UNMISET? An independent position in the sense that we take a responsible stance towards the law and regulations, not towards people or officials. In my opinion, independence here for the time being does not include independence in terms of support. Because whatever else, we still need incidental support from other countries. Like the problem of finances, experts and so on. Naturally that does not take away from the meaning of independence itself. But, literally, we work independently and are legally responsible, without being close to any other elements, both individually, or as a group or even politically.

What constraints are obstructing the functioning of the legal system in East Timor? In my view, the main constraint is that almost all agencies are working on the basis of UNTAET regulations. I think that at some point in the future, all agencies, both legal and in other areas, will already have their own rules and laws. In that way, they will be able to work more freely and be accountable to that law itself. At the moment, it's like we're floating aimlessly. We've been ordered to sail but someone else is at the helm.

As the Attorney General, how do you see the spotlight on the law in ET? I don't have any personal comment to make on that issue. From everything that has taken place so far, I can draw the conclusion that legal institutions and all of their machinery in East Timor must immediately be fixed up. This is to support and develop the images of those institutions as independent and to avoid interventions from outside. And I think that what is happening at the moment, as is the position held by many people, journalists, radio and so on, is that a legal institution is like a ship, where the person is just standing but being restrained by someone else.

What is your reaction to the rumor that there is a mafia of the judicature? That's the opinion of individual people. I'd just say that whether there is or not, I would only be speculating here. As a person who cares about this issue, I think that the government must immediately pay attention to the problem of the financial well-being of judges and attorneys, so that things like that are avoided. Because this relates to the issue of our law in the future. Thus, (by paying attention to of the financial well-being of judges and attorneys ? ed.), attorneys and judges as well as all components that work in legal institutions will be more responsible and professional.

In this instance, if there are attorneys or judges who are not professional, do they need to be replaced? That depends on the regulations that I mentioned earlier. That there are laws for each institution, so that there will be a disciplinary board for that institution. That board will be able to decide whether an attorney has done something that is in conflict with their duties. Apart from this, the board will also have sufficient authority to be able to recommend the dismissal, suspension, or exemption of a staff member. All of that will stem from that law itself. I think that to respond to this challenge the government must immediately submit that Bill to parliament, so that it can be ratified. Then we will be able to work in line with existing regulation, with a foundation that can direct us. Now we are working without any direction.

There have been many complaints from the community thus far about the issue of miscommunication in trials. In your opinion, what steps can be taken to overcome this? That is also a very complex issue that is obstructing the process of trials. And with increasingly minimal support from interpreters, so minimal that in fact it's stopped totally. So now it will be even more difficult if we face problems, especially in court. And I have heard that in all institutions, both for lawyers in court and in the Dili District attorney's office, all interpreters have been dismissed. Those who are still around are at serious crimes, where I got a bilateral budget for them a long time ago and also aid from UNMISET. I think that is a point because it obstructs the process of trials.

What is the legal base that is used in court? For instance, in land cases, there are those who say that title deeds from the Portuguese time are valid, or the Indonesian time, or from Untaet. Which one is recognized? I think that the issue of land is a very, very complex one. I think the government must take a position. Whether or not we want it, like it or not, one of them must be sacrificed so that a direction for the future can be determined. The historical fact is that ET has been through a number of governments, from the Portuguese, Indonesian, to Untaet until it became independent. So I think the government must take a stance to find a balance. That is a very difficult matter. Because in many cases, Portuguese documents are prioritized and receive rights. In other cases, Indonesian documents are prioritized and approved. There are many cases like this. Cases that are won because they have Portuguese documents. There are cases because they have Indonesian documents, of course this is not justice. I think the government must take a position, and naturally there must be those who make sacrifices.

What do you mean that there must be those who make sacrifices? For instance, all Indonesian documents are not valid and all Portuguese documents are valid because that's the system. Or the reverse, all Portuguese documents are not valid, or all Indonesian documents, so we can get out of this crisis. In the future we must be able to straighten out all of this and design new ones, or the opposite. And in this matter I'm just making an honest comment. I think the justice minister is more competent to answer an issue like this.

As the head of the investigation into 4 December, what are the developments in the case? As we know, I lead one of the independent commissions set up by parliament, after being a member of an independent commission set up by the government. The mandate of the commission was as a fact-finding commission. Where we just worked to find facts, what actually happened in that incident. Both on the 3rd at 28 November High School, as well as what happened on 4 December, especially at the National Parliament. Naturally this commission was working with the limitation that what we did was not a criminal investigation, but just a fact-finding investigation into what happened.

Then where is the case up to? After I ceased being the head and member of the commission, I followed-up those documents with the investigating commission, in this case the police. Because they can carry out an analysis from the report that we have discovered. The term is that there are certain acts that can be categorized as criminal acts.

For instance?.? And if that has happened, then it is the police who will carry out the investigation in the future in the context of a criminal investigation, not a fact-finder. And what is happening now is that I have handed over the file of the results of our findings to the police to study or to be reference material because however that criminal investigation is carried out, it will be carried out by the police. Perhaps in this case they need extra data from the results of the commission's findings, so they can take it and use is as a reference.

In the investigation process, are there certain people who were involved in the December 4 case or not? Naturally we are not defining A as guilty or B as in the right. What we are doing is finding out what actually took place and why it had to happen and exactly who was a victim here. Of course there a number of recommendations that we have put forward in a very short time period in which to complete a truly fair and just investigation.

From the results of the findings what do you think were the causes of the incidents of 4 December? We have done already done the maximum on that, and found that there were three elements causing the incidents of 4 December. First: an element of spontaneity from certain people who wanted to know about the arrest of a student at 28 November High School. And those students didn't know the actual rules, spontaneously wanted to find out what had actually happened and why he was arrested. The second element: at the time, coincidentally, other people were there and became involved just because they joined in all together. Thirdly: an element that was rather organized in carrying out further actions in expanding the actions in an organized and structured sequence. Because, however it happened, beginning with vandalism, both in front of the Parliament building, Hello Mister, Resende, Colmera, the Kampung Alor area, to Comoro, and finally at the residence of the Prime Minister, it was a series of events, with a sequence that had already been determined. That caused the commission to draw the conclusion that all of it was organized by certain groups, which naturally the findings of the commission have already been able to identify.

Who exactly? In our capacity as a commission, it was not our decision to say that A was guilty and B was guilty, but hereafter the police are the ones who will follow-up based on the report. The police will make an analysis from a police viewpoint, whether or not there was a criminal element that can be taken to court to be legally accountable.

Is the commission still working now? Oh no, we were only given a mandate of 72 hours to complete our task.

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