Bar News - September 17, 2010
Crisis in East Timor: NH Lawyer Takes on the Challenge
By: Beverly Rorick
"Practically the entire country suffers from post traumatic stress disorder," Michael Th. Johnson told Bar News during a recent visit home to New Hampshire from his work in East Timor, where he is the senior management advisor sent by AUSAID to help the Timorese develop rule of law by building its judicial institutions.
Children in East Timor scavenge rubble for useable building materials.
A NH Bar member since 1981, Johnson served as Merrimack County Attorney for 19 years. In 2001, he resigned his position to work for the United Nations at The Hague and in Rwanda. He served as the Chief of the Prosecution Division of the International Criminal Tribunal for the former Yugoslavia, then as Deputy Prosecutor for the Rwanda Tribunal in Tanzania and Rwanda. After that, the US Department of State appointed him to build the State Court War Crimes Chamber for Bosnia and Herzegovina.
The Chamber’s mission was to develop in Bosnia the state’s capacity to prosecute war crimes indictments; many such cases had accumulated at the Tribunal in The Hague and were being transferred to the various individual states that used to make up Yugoslavia. Johnson essentially created an administrative office of the courts for Bosnia.
After finishing his work there, he spent a year in Washington as a Senior Fellow with the United States Institute of Peace, after which he was sent to Kabul, Afghanistan. In Kabul, he acted as the State Department’s Legal Advisor to the Afghan Attorney General. His mission was to help Afghanistan develop a "national justice strategy, [by] redrafting the criminal procedure code and developing a competent prosecution service." (See Bar News, January, 2008).
From Afghanistan, Johnson went to Bangladesh for a short assignment with the United Nations in the summer of 2008. He came home from Bangladesh planning to stay in New Hampshire. However, shortly after his return, he got a call from Australia (AUSAID) asking him to accept his present assignment in Dili, the capital of East Timor (also known as Timor-Leste).
Building a Justice System
"It’s a difficult society in which to build a single view of law," Johnson said. "There are about a million people, from many different backgrounds: in addition, the traditions of the native Timorese, the Indonesian culture – and Catholicism [from the years of Portuguese colonization] all have a huge influence on people’s thinking."
Language is a challenge, too. There are four commonly used languages and many different dialects. "There are at least 50 dialects of Tetum [the predominate, native language] and most do not have tenses," said Johnson. "So it’s really difficult to tell whether the discussion concerns something that is past, or is happening now—or is going to happen."
Portuguese is the most commonly used language in the legal system, however. Many of the laws are imported directly from Portugal with little modification.
Partly because of the numerous Timorese languages and dialects – and partly because the island has a long Portuguese history – all the prosecutors, defense counsel and judges have had to learn Portuguese. The elementary schools recently began a Portuguese language curriculum, with their teachers given only three-months of intensive Portuguese training during a special school holiday.
"Most of the more senior lawyers have Indonesian backgrounds and Indonesian training. The transition to a Portuguese system hasn’t been easy," said Johnson. "Most of the national judges have been trained in Portugal and there are many Portuguese, Cape Verdi or Brazilian lawyers, prosecutors and judges now working in line positions in the legal system."
Born out of conflict and bloodshed, East Timor has not known lasting peace and self-governance for several centuries. It forms the eastern half of the island of Timor and is about an hour’s flight north of Darwin, Australia. The western half of the island is Indonesian West Timor.
The Portuguese colonized the island in the 16th century; then, about a hundred years later, the Dutch took over the western half of the island. The Portuguese kept East Timor, which it exploited for the next couple of centuries for its sandalwood and coffee.
In 1941, the Japanese invaded East Timor. Dutch and Australian troops were sent to repel the invasion and the ensuing battle resulted in the deaths of 40,000-70,000 Timorese.
After World War II , the Portuguese essentially abandoned its colonial system, including East Timor, which immediately declared its independence. Before it could be recognized, however, it was invaded by Indonesia. During the 25 years that followed, East Timor was the scene of over 100,000 war-related deaths.
In 1999 East Timor finally gained its independence but violent clashes broke out between warring factions; Australia sent a peace-keeping force to restore order. Finally, on Sept. 27, 2002, East Timor was officially recognized and joined the United Nations.
"Because of the diverse backgrounds of judges and attorneys, and for many other reasons, the courts are something of a hybrid affair," said Johnson. While Tetum is most commonly spoken by the ordinary Timorese, the majority of the current laws are first drafted and then published in Portuguese. "There is no unified bar – and very few informal mechanisms are in place to encourage collegiality among the legal professionals. This situation is complicated by the many competing points of view about how the legal system should develop, with the international organizations and development experts and national officials all having opinions."
As for structure, there are 13 districts, but only four court centers. Offices and housing for lawyers and judges are only now being completed to support access to justice outside the capital of Dili.
The development of the justice sector has been very heavily influenced by international involvement, including that of Portugal, the UN and Australia. In the eyes of the average Timorese citizen, corruption presents the major challenge to the development of the justice system and the integrity of the rule of law. "We want to make the justice system accessible, transparent, accountable and efficient, but there is a long way to go to achieve those goals," says Johnson.
In addition, the government has decided that it in the best interest of the state not to prosecute war crimes arising out of the various conflicts of the past decades. One of the most notorious of the war criminals from the late 20th century recently returned from exile and was arrested but released shortly thereafter and allowed to return to his home in Indonesia, even though there was a judicial order for his continued confinement.
Not only is the professional side of the justice system under development, but the technical infrastructure is in its infancy as well. "The last several years have been spent building offices and working with the prosecutors to develop a case management and tracking system," said Johnson. There are thousands of cases in backlog and many stand outside the required time restrictions for prosecution. Some case files, along with evidence of crimes, were stored along with old truck tires and broken furniture in temporary warehouses. The registry of some cases was kept in elementary school notebooks in pencil.
Furthermore, the literacy rate is very low. "They are just now learning how to formally communicate with each other both vertically within each institution and horizontally across the sector," said Johnson. "Up until now pen-and-paper communication has been better than computers. We are trying to help them build their information management systems to reflect both the realities of Timor-Leste and the potential efficiencies of automation."
Johnson believes the best approach right now is for the international community to say to Timor: "You tell us what information you need to share within your institutions and across the justice sector and we’ll show you how to do that in the most effective way.
The team, comprised of Australian, American and Portuguese development experts and police training officers, the UNDP (United Nations Development Programme) and national staff, is working with a Boston-based automation firm, a prosecutor from the Middlesex County District Attorney’s Office in Massachusetts and technicians in Bangalore, India. They are trying to help the Courts, Prosecutors, Public Defenders, Prisons and Police develop their information management and sharing systems in coordination with one another.
"We are endeavoring to help them build their judicial institutions in equilibrium to ensure the checks and balances that a justice sector needs are able to function. Timor is struggling to provide to all its citizens full access to an efficient and effective justice system. In that respect, they are no different from New Hampshire," said Johnson.
Timor-Leste has many daunting challenges, like bad dreams, facing it all at the same time. One such nightmare is the road system in this ravaged country. It represents a major and desperately needed infrastructural investment; and, as in our country, a substantial risk for corruption in government contracting.
"Those of us from Europe and North America are struck by the contrast between the remains of centuries of exploitation on this island paradise and the potential that lies ahead of the people who now truly own it," Johnson said. The hills, stripped of sandalwood and teak, look down on beaches that seem to stretch forever in front of a blue and placid ocean.
An ocean, by the way, where the Timorese have recently discovered oil – which, Johnson believes, presents yet another management problem for the fledgling country and its justice system.