I was interested to visit a courthouse when I heard that there is a list fixed with time to call up cases in courts in Timor-Leste where we hardly found such schedules in the Sri Lankan court system.
I was given the opportunity to visit the Dili District Court in Timor-Leste recently by the Judicial System Monitoring Programme (JSMP) which is a leading non-governmental organisation in accountability, and strengthening the Rule of Law. I was accompanied by JSMP staff members Ms. Eurosia de Almeda and Mr. Jose Moniz.
The Judicial structure of Timor-Leste consists of a Court of Appeal and four District Courts. The Court of Appeal hears appeals brought from the District Courts. Timor-Leste utilizes a civil law system and is developing its own courts system. There is no separation as criminal and civil courts and hence all cases go through the same system: first through District Courts, and then to the Court of Appeal.
The Supreme Court of Justice, constitutionally to be the highest court, is not yet established. The Penal Procedure Code includes all rules for the procedure as well as evidence and sentencing. There is no death penalty in Timor-Leste and the highest punishment being a term of 30 years of imprisonment.
Entering the courthouse was very easy, where there was no security checking and as a human rights activist and regular visitor to Sri Lankan courthouses, I found a friendly atmosphere there.
From the entrance, I felt the differences between the two environments as back in Sri Lanka where I often accompany the victims to courts. In Sri Lanka we have witnessed on many occasion where ordinary people are virtually harassed and victimised by the security personnel from the time they enter the court premises. They are scolded by the security guards and the Police officers for simple reasons.
"Ordered to put up a public notice to say that people entering the court premises should wear only white, and the Police officers on guard were instructed not to allow anyone to enter the court house without the white attire. "
There was no dress code to enter the Dili District Court. Then I recalled how a Sri Lankan Magistrate charged and remanded a woman coming to court in a coloured dress. The Magistrate had ordered to put up a public notice to say that people entering the court premises should wear only white attire, and the Police officers on guard were instructed not to allow anyone to enter the court house without the white attire.
I was also not permitted to enter the High Court of Kandy many times for not wearing fully white attire. Women wearing trousers or jeans are strictly prohibited in High Courts.
It was as the dress code was given the priority over the delivery of justice in Sri Lankan court system. After entering the court I saw how the cases were lined up and scheduled for trials.
The schedule included the time, case number, Judges, brief description of the case and very few people were seated outside until their cases were called. There was no rush at all, as the trials were fixed according to the time.
In Sri Lanka, litigants need be in court by 9.00 a.m. and are hardly aware as to how long they got to wait until their cases are heard.
Dili District Court comprised 04 hearing rooms and we entered one courtroom where there was a domestic violence case was taken up. In Timor-Leste, every victim is assisted by a Public Prosecutor and every accused is assisted by a Public Defender (defence lawyer). The Judges lead the evidence and not by the Public Prosecutor or Public Defender. The Judge directly speaks with the victim, accused and other witnesses.
It was really surprising to see the nature of leading evidence. The Judge spoke gently with the victim and allowed the victim to explain. Then I remembered how our victims are further victimised during the trials as often the defence counsel raise their voices and humiliate the victims.
In Sri Lanka, there had been instances where victims of rape are indirectly labelled as prostitutes by some defence counsels at the beginning of the trials.
This particular case was called that day when I was in Dili District Court in Timor-Leste for more clarification and the Judgment was scheduled to be delivered the
After this case was over we entered another hearing room where there were 3 Judges on the bench as the case was a more serious one. It was a domestic violence case.
Domestic violence is considered as a serious crime in Timor-Leste. The Judges led the evidence from the accused and then the wife (the victim) was called for evidence. The accused was called for evidence once again for more clarifications. Considering the evidence the Public Prosecutor on behalf of the victim, made his comments and requested the Judges to impose a 6-year jail term to the accused.
The Public Defender made his remarks to the Judges and pleaded the Judges for a lenient punishment as the accused, the husband happened to be the breadwinner of the family.
The trial was concluded in one day and the Judgment was scheduled to be delivered within a week.
In Sri Lanka, cases are more often being postponed rather than taken up for trials. Generally, it will be at least 03 months of interval in between two calling dates. There had been instances where more than 12 years is taken to complete a trial and I recalled how a rape victim had to go to courts for 15 years to get Justice done and I accompanied her to courts since 2005.
Many journalists were there and taking notes of the case and the trial process is being monitored by various parties including NGOs. I learnt that some cases take time to complete the trial but it should not exceed 02 years and if so it will be a controversial and bad remark.
The delay of Justice could be questionable by the monitoring parties. Therefore I felt the importance to have a strong Judicial monitoring system in a country to establish the Rule of Law.
I found that the Judicial System Monitoring Programme (JSMP) in Dili Timor-Leste is doing a tremendous job in trial monitoring, analysing and making recommendations. It has given an enormous impact and contributes to the development and improvement of the Judicial System to ensure a transparent and proper functioning court system.
JSMP has monitored several important cases involving high-level state authorities including the corruption cases involving the former Minister of Finance and the former Vice Minister of Health.
In addition to observing the justice sector, JSMP also continued to observe the National Parliament.
I felt the difference and remembered the stressful situation (going out of the court) in Sri Lanka. In this court system of Timor-Leste anyone can witness the trials, can take notes, can speak to each other (softly without disturbing the proceeding) even you could use the mobile phone in silent mood inside the court.
Furthermore, microphones are fixed for each party and everyone could hear the conversations very clearly. In Sri Lanka often we don’t hear anything that is spoken in the court and the cases are postponed without a proper explanation given to the parties.
No one can take notes inside the court or cannot read even anything related to the case. In the beginning of my journey with the victims I have been scolded several times by security guards and the police officers for reading the case file and taking notes while I was accompanying the victims, and now I understand that is strictly prohibited in the Sri Lankan court system. We are not allowed to speak inside the courthouse even for an emergency.
Crossed legs or crossed arms are strictly prohibited. We should remove the battery from our mobile phones when entering the Kandy High Court if not we need to keep our mobile phone at the security check.
Once a man was allegedly given an eight-month jail sentence for yawning inside the Mount Lavinia Magistrate’s Court in Sri Lanka while the court was in session.
I remember once the mother of a raped girl whom I accompanied to High Court of Nuwara Eliya had to take off her shoes to the command given by a Police officer, reasoning it create a noise and it disturbs the court hearing. The poor mother was barefooted during the entire trial in such a cold weather and I felt guilty that I could not oppose this rude action and I might have been charged for contempt of court if I argued with the Police officer.
Once our director Fr. Nandana Manatunga had to intervene and make a complaint to the Court Registrar to get permission to enter the High Court of Kandy as a mother of a political prisoner was not allowed to enter the courthouse to witness her own son’s hearing.
"In spite of welcoming the valuable recommendations made by the UN Special Rapporteur, the former Minister of Justice Wijeyadasa Rajapakshe condemned and objected the report."
There are bundles of stories how our Judicial System treat the ordinary people, that I have experienced during my 12 years of journey with the victims of torture and rape by accompanying them to various courts in many parts of the country. With all these feelings of differences of the Judicial Systems in the two countries I came out of the courthouse and then I was surprised to see the Judge, whom I saw in the 01st trial was waiting for his car standing at the exit of the courthouse which was very unusual in our context.
A report prepared by the former UN Special Rapporteur on the independence of judges and lawyers, Monica Pinto, on her mission to Sri Lanka from April 29 to May 7 in 2016, at the 35th session of the UN Human Rights Council, was highly critical of the Sri Lankan Justice System.
During the visit, the Special Rapporteurs met relevant ministers, government officials, members of the judiciary, the Attorney-General, lawyers, the National Human Rights Commission, civil society members, and victims and their families.
In addition to the visit in Colombo, Ms. Pinto and her team visited Anuradhapura, Jaffna and Kandy. Our organisation, the Human Rights Office got the privilege to organize the meeting with Ms. Pinto to meet the civil society members and victims in Kandy.
The report disclosed the political mess and the crisis of the administration of justice and given extremely valuable recommendations for reforms that would benefit the nation.
In spite of welcoming the valuable recommendations made by the UN Special Rapporteur, the former Justice Minister allegedly condemned and objected the report.
Justice Minister, delivering a statement in Parliament, said the UN must act with responsibility when appointing top officials. He further said the report by the Special Rapporteur was harm ful to Sri Lanka’s Sovereignty and the Special Rapporteur was misled by non-governmental organisations when compiling her report.
The minister said the Government has sent its response to the report through the Foreign Ministry to the UN.
It is the government’s duty to have identified these problems and taken the necessary steps to have them corrected. It is this type of practical problems that the UN Special Rapporteur is referring to and such type of recommendations should have been welcomed, by the Government if it was concerned with improving this most backward system of administration of justice that exists in the country. Timor-Leste is a young nation gaining independence in 2002 from the occupancy of Indonesia and working its development towards the Rule of Law, respecting the Constitution and the law, and the recognition of international law.
Timor-Leste has ratified a significant number of international treaties and conventions since 2002 and has adopted the customary principles of International law in their own legislative process.
Sri Lanka has bounded by ratifying 13 major international treaties and conventions since 1980 including ICCPR and ICESR.
The practical significance of ratification is an indication of a Government’s commitment to safeguarding human rights and upholding the international order. Ratification assures the people of a country that current and future administrations will be subject to a continuing international obligation to guarantee specific and fundamental human rights, no matter who is in power. Also, ratification helps to strengthen domestic human rights protection by providing standards and benchmarks for national law and practice, engaging the expertise monitoring and making recommendations.
Sri Lanka is a country that has been always proud of its history as a Nation but hardly adopts the best practices from other countries. Timor-Leste being a young nation achieved tremendous progress since gaining independence in 2002 and suffered some of the worst atrocities of modern times in their struggle for self-determination.
Therefore, “Sri Lanka……, Let us learn from Timor-Leste and let’s make a change in the system that respects and safeguards the dignity of all persons and build a nation that establishes the Rule of Law”.
Lucille Abeykoon is human rights defender from Human Rights Office – Kandy and organisation working for the victims of human rights violation. This report was made following the recent visit to Dili District Court in Timor-Leste.
Some highlighted issues addressed by Ms. Pinto
Delays in the administration of justice (investigation of crimes and the indicting process)
Judicial delays - The backlog of tribunals, in both civil and criminal matters which is dragging for 10 to 15 years, should be considered.
Independent, impartial and transparent institutions as the administration of justice must be more transparent and democratic as transparency is an essential requisite of the Rule of Law.
Judicial accountability as accountability is a must in a democratic society.
Constitutional review - an opportunity to strengthen independence.
Implementation of international human rights law. As the country has ratified a great majority of international human rights treaties however, these instruments and their related jurisprudence are not deemed enforceable at the domestic level.
Access to justice - Access to a lawyer and other due process guarantees.
Transitional justice - create a meaningful and participatory transitional justice mechanisms.
Education and training for significant change
Language problems have a dramatic impact on access to justice and respect for a fair trial and due process guarantees for Tamil speaking people.