TL MPs Violated Its Own Regime By approving Unconstitutional Resolution To Suppress Judicial Sector •Written by Tempo Semanal •Segunda, 10 Novembru 2014 19:36 Dili, Tempo Semanal - On the 24/10/2014, Representatives of the people in the National Parliament of Timor Leste violated their own regiment article 52 and 85 in and even worst these law makers trampled all over the Constitution, when they decided to give the government power to audit the judicial system of the country. The Judicial pillar is a sovereign pillar just like the other three pillars: the President of the Republic, the National Parliament and the Government. Member for opposition, FRETILIN, David Mandati Dias Ximenes told Tempo Semanal in an exclusive interview on the 31/10/2014 in Dili. Mandati revealed some of what went on behind closed doors parliamentary meeting including some of the points for debate. Mandati said that the opposition was all in favour of National Parliament Resolution 12/10/2014 to empower the government to form a technical team to negotiate the maritime borders. But instead they started to debate resolution 11/2014 to which it was going to empower the government to form a team to audit the Justice System. There were disagreements and the Prime Minister got angry and walked off the plenary, but returned later to continue the debate and to put it to a vote. Mandati acknowledges that the Justice System must be audited but its not with a National Parliament Resolution. Because according to the opposition Member for Fretilin, who voted against the resolution, he did not want to start a precedent in Timor Leste like a door to start absolutism and totalitarianism in this country. To find the entire interview lets all follow the Tempo Senamal (TS) exclusive interview with Member of the house David Mandati Dias Ximenes below: TS: Can you explain a bit about this closed-door plenary of the 24th October including how the Resolution 11/2014 of the National Parliament came about? Mandati: I can tell you that at the time, when we look at the legal proceedings properly, this should have not had happened. But we can also say that my position at the time was clear. When the Government adopts a policy to defend the natural resource of Timor Leste that is indispensable, all Timorese citizens must defend and must support this policy. We can’t deny it, its indispensable. But when we talk about what belongs to us and our nation which is now a estate, then we need to talk about legal procedures that we already in have place. And it is through these procedures that we are going to defend our natural resources. It is through the legal procedures that we can be legitimate. Because our resources are not only in the land but also in the sea which has to do with the neighboring nations, our relationship with them, so its only through law sand rules. Laws and rules that our country has and the rule of democratic law guided by our Constitution. We were against each other not because of politics, but because of the legalities of all this. Second point, FRETILIN, was also wrong because it was not in the National Parliament’s regiment; in article 85 it states that plenary is to be public. But all of a sudden we had it in closed doors. At the time, it actually was in the agenda for the day it only had one topic, and that was a meeting with the Prime Minister, so immediately it was not a plenary; but all of a sudden they appeared with two resolutions; one talking about the Maritime borders and the other was to do an technical auditing to the judicial system. At this point, FRETILIN should have raised an issue to say that it was illegal and that if we are going to make a resolution then it must be made in the plenary for the people to know what we were discussing, but not in closed sessions. But at that moment we also forgot, time should have been given to us so that we could discuss it first but no. Yes, we did go and discuss it first and we invited our secretary general to be there, and the secretary general said: “All of you whom are in the Parliament Bench are you still together or not? My younger bother Osorio said “we are no longer together, the secretary general then said: so then each of you vote as per your conscience. However Dr. Mari said, at the very least you can abstain, but do not vote in favor, but mostly you have to vote against it (resolution 11/20124). So we went back in, correctly we should have said that we could not vote for this resolution because this is not a plenary but a meeting. Since we were in a meeting we came up with a resolution? So the second rule on the table for the resolution would be null or void because this was not a plenary this was a meeting. Thirdly, when we saw the resolution we started to debate it. So, member Joaquim dos Santos said, this is not right. We came here to meet the Prime Minister. Then he spoke to you in a harsh, harsh way and you appeared with this resolution. Let us see it first; you must not treat us like sheep. Then Maun Xanana got angry, shouted and walked out. But suddenly he came back and he apologized to the other (Joaquim) and we continued. All my colleagues had a say so I also put my hand up to speak. I said: article 69 of the Constitution states the separation of powers; separation of power is to avoid absolutism. Absolutism means to be ruled by one person only. That person is the law, and he is everything else. And here it can cause abuse of power. That is why in France after the revolution the people separated the powers; traditionally it is legislative, executive and judicial. Legislative is to make laws, and the executive executes the laws. The control, the implementation and those who break the law must be of the accountability of another institution and that is the judicial. Tribunal institutions are the ones that will deal with the law and make decisions with the law. That is why; we here (Parliament) cannot do an audit to the judiciary. When we, the Parliament and the Government, do an audit to the judiciary, some will say that this is an intrusion and we cannot accept this intrusion. Otherwise we will fall in the totalitarianism, when that happens with no longer have a State we only have a country. At the time I also said, each pillar is separate, there is a pillar that controls and we also have a justice pillar. The justice pillar is in article 128 of Constitution of the Republic, it is called the Superior Council of Magistracy, which is to oversee discipline and heaven and hell of the behaviour of the judges. And to implement the laws accordingly. The members of this Superior Council of Magistracy are the President of the Court of Appeals because we still don’t have a High Court, then it is the representative of the President of the Republic, followed by a representative of the National Parliament, a representative of the Government and an additional representative of the judiciary. So, all the pillars are represented there, its now up to them. We as Parliament, as President, as Government we give them bullets, arguments and material for them to debate there, so we are wrong here we need to revise this. It is not what they do there that we bring it here and then we decided that we are the ones that will conduct an audit to the judiciary. If this is the case then one day we will go and audit the President of the Republic that is not right. We are about to become totalitarianism because the Government is taking charge of everything and the Prime Minister is in charge of everything, that is not right any more. That is a dictatorship and totalitarianism. Article 134 of the Constitution defines the prosecutors, this also to do with the Superior Council of Magistracy and the Public Ministry. This is to supervise what the prosecutors do. They are responsible for their supervision and management. The person who preside is first the Prosecutor General of the Republic, secondly, is the representative of the President of the Republic, thirdly, is the representative of the National Parliament, fourthly, is the representative of the Government and fifth is the representative of the prosecutors. At the time I asked; why don’t we give them the material first then we can talk but we had to go there instead. We always say that they is it all mined. Are we saying that all our judges have all gone mad? If we have lost in the Lower Courts and we are not happy, we can apply to the Higher Courts. Why we are doing this? That is why I said this is not right, so this cannot be done. But Mrs. Carmelita went against it, saying, technically we can and there no problem. But I insisted that technical or strategy; we cannot do this because this is what is called an intrusion. This belongs to another organ, what we are going there for? Those who are there should be doing this. Come and ask us to give bullets or the necessary material, then you present all these problems and we will go and talk. It is not that we all go and intervene, that is no good. We cannot say that maybe our judges done wrong and maybe our prosecutors have done wrong, instead of solving a problem we create another. Just like when we build a house, to resolve a family problem, we go and burn down the house instead. Or like we see mosquitoes in the mirror and to get rid of the mosquitoes we get a hammer and kit the mirror. This is not right, cannot be done. But they are the majority; even though we voted (against) they won the vote. Firstly, if I am not wrong, the FRETILIN members present were about fifteen, the rest abstained, three voted in favor and five voted against. I am very sad, because it is our nation are where are we taking it? That is why I say the resolution passed but I knew that this resolution was not valid. This resolution is worth what is worth. We know that resolutions are only taken for conventions and international treaties and not for these things. However, its passed and I just watched, as I always said, let’s see if the judicial people will follow it or not. Because they claimed that article 120 of the Constitution of the Republic states that the Courts shall not implement what is unconstitutional and all things that are not within the law. The Courts are independent and therefore the courts will not bow to anyone only to the Constitution and to the law. Now we are violating the Constitution, because we are telling them to bow to us. TS: How can the members of the National Parliament make laws that go against the Constitution of RDTL? Mandati: Against the Constitution like article 128 and 134. And also article 69 in regards to the separation of powers. This is not something that one just gets up and talks. It’s not like what some of our ministers say that; ah, we have to all bow to the decisions and resolutions of the National Parliament and the ones that it’s against the constitution that is only commentary. It is not only commentary, for those who know and have read all this will say, article 69 of the Constitution of the Republic that is all FUKRU. All others are technical issues regarding how to control and supervise the pillars, like article 128 it is regard the Superior Council of the Judicial Magistracy and article 134 regarding the Superior Council of the Magistracy of the Public Ministry. Just following this we can give our material to our representatives to work, not to go and intrude instead. TS: According to TS sources, you were strongly against this resolution, is this correct? Can you tell us why? Madanti: Yes, I voted against it. Because it was against the constitution. For me what concerns our natural resources, which I agree and totally support; but it has to follow existing legal procedures, not that to defend our country we go and trample on existing laws. These two things have to walk together for it to be clear. Because, we are a nation in a institution in the globalized world. We only have respect for each other when these laws are in place but when there are no laws in place then others more powerful can really blow us up. TS: But Honorable member, before voting, the Prime Minister had made a presentation and explained clearly the wrong doings and mistakes that the Courts and the Public Ministry had done causing Timor Leste to lose 16 cases. So why didn’t all of you just support it because this was in the national interest? Mandati: Correct, but where is the loss; maybe it is in lower courts, we must appeal to the higher court. Why aren’t we appealing? We lost according to the law, so we must appeal according to the law so that we can win it back. Not that they are violating and we also violate. It is true that they really violated? If they are saying that the Judges violated then article 128 of the Constitution, tells them to verify it. If we lose in the lower courts then we should appeal to the higher courts. Why are we doing this? TS: The job of the National Parliament is to make laws, ratify contracts and supervise the political process. Do you (NP) know what is in the tax contract of the Timor Sea? Mandati: Well, unfortunately I myself am unaware of it. That is I limit myself to the Government policy. Even though I support the Government policy to defend our natural resources but I also defend the laws in place for our Government to use it to defend it. Instead of defending our natural resources they trampled on the Constitution, it cannot be done. These are interventions and intrusions. So where is the Rule of democratic law? TS: Honorable member, from what you have said it shows that you are not with your veteran colleagues who have stated their support for the resolution that says it’s to defend national interest even though the courts have ripped up and dumped NP resolution 11/2014 and Government resolution number 29/2014. Maybe you can tell us what your position is that you did not defend the national interest of Timor Leste. Mandati: It’s not that I did not defend national interest. I know the definition of a nation and a state. Many nations together can form a state. I am just saying that everything has to be according to the law for a state to exist. When we speak about the nation we must speak about a peoples, we speak about a country and a political organization. A political organization it’s through the formation of a state, with laws and rules for our social convenience to function. That it’s called a state. If the laws don’t work then it’s what is called the Law of the Jungle, the most powerful wins. That was before, in the primitive ages or in primitive history, in Indonesian it is called Hukum Rimba, but it’s not ours. Now even less since we all speak about rule of democratic law, the Constitution is above all, so why today we have come to this? We to seat together we cool heads so that later we cannot create crises after crises for us to only be solving crises, instead of developing our country to do something for our people after their long suffering. TS: Some people say that if the judge had done what National Parliament resolution 11/2014 stated this would have affected and could have blocked the trials for the cases still left in the Courts. What do you think? Mandati: Its like, it will not block, because there is already have a memo from the President of the Court of Appeals. As the head of the Judicial for all the professionals of the Judiciary to not take notice of the resolution, that is not in place. This memo from the Court of Appeals said clearly that was not in place, and for all officers to carry on with their work and to disregard the resolution. That is why the people in the courts continued to work, if anyone does not want to go, it is up to them but the judges continue to do trials in absence. TS: You can say this but you also said that you know that members of National Parliament and Government are making fun of the immunity issue; you can also be making fun of the courts. Mandati: Now, we can say for immunity, that those we have been accused with crimes with penalties of more than three years then his immunity must be lifted. We cannot say that we cannot lift it, but it must be lifted. Even if there are some instructions saying not to, it must be lifted, this is formally, but it must be lifted. TS: But Honorable member, right now the plenary is yet to lift the immunity of your President of the National Parliament and of some of the members of the Government who have been accused, what about them? Mandati: That is true, but we have not yet started plenary. Yesterday and the day before we did speak about it. We will have to ask where the request from the courts is. We sure will ask for that, we must lift it (immunity). We cannot just let it go, this are rules, this are laws, this is the constitution we cannot play with it. TS: You might disagree but right now people are thinking that the judges and prosecutors don’t defend national interest of Timor Leste, therefore urgently needed resolution 11/2014 to be implemented because the PM had informed that he clearly suspects, that in his opinion, the judges and prosecutors have already done wrong. Mandati: No, lets just say this: what have these judges done wrong? Only those who have interest say that the judges did wrong. For those who know say: The judges did no wrong. The judges only followed the law. If the judges were wrong, tell the Superior Council of the Judicial Magistracy to do their job as per article 128 of the Constitution of the Republic. Tell them to do it the report back the results. So that our representatives their can do it. There is a representative of the President there, a representative of the Parliament, a representative of the Government and of the judiciary are all represented, we can ask them to do an audit and to control to see what is happening. It is not a resolution that will solve it. TS: From what you have said you have very strong doubts about this resolution is this correct? Mandati: I don’t doubt the resolution. Resolution 11/2014 has no value for me. First error of proceedings was when we first went in they said that we were going to have a meeting with the Prime Minister but all of a sudden a resolution was taken, that was against the regiment of the National Parliament article 51. This was not a plenary for a resolution to be taken that was not right. After was the plenary open to the public, as per article 85 of the regiment of the National Parliament states, public. Instead of opening it to the public we closed it. TS: So just to confirm that the theatre for which the Parliament did to approve the resolution also violated the regiment of the National Parliament itself? Mandati: Yes, we violated the regiment. The National Parliament violated it own regiment, violated and violated, yes we did violate the regiment. The opposition at that moment should have done something, but the opposition did not say anything and followed the others, I am also one of them, I also did not say anything. (*)
Posted on: Mon, 10 Nov 2014 22:02:05 +0000