Sydney Morning Herald June 7, 2000

UN legal code abysmal: lawyers

By MARK DODD, Herald Correspondent in Dili

A draft UN legal code designed to serve East Timor's fledgling judiciary was so flawed it would make a criminal conviction virtually impossible, a visiting team of senior Australian legal experts said.

Mr Robert Cavanagh, a barrister and senior lecturer in law at the University of Newcastle, and Mr Liam Shaw, a solicitor with the NSW Department of Public Prosecutions described the draft code as dangerous after being asked to read and advise on any flaws and suggest amendments.

They warned on Monday that implementing the proposed UNTAET regulation "On Provisional Rules of Criminal Procedure" would probably result in "significant difficulties" for the administration of justice.

The draft code was to be ratified last Friday by the UN-chaired National Consultative Council, East Timor's de facto government, but has been deferred.

"This is a dangerous and onerous document. It must not be passed if criminal investigations are to have any chance of success," said Mr Cavanagh, a defence lawyer with 16 years' court experience. A High Court judge would find it impossible to interpret, he said.

The concerns of Mr Cavanagh and Mr Shaw were supported by the NSW Deputy Coroner, Ms Jan Stevenson, who is in East Timor to assess the state of the judiciary for the Catholic Agency for Overseas Aid and Development.

She said the draft's authors appeared to have little understanding of the law.

"If you are going to draft legislation for a new nation, then you should try and make the legislation such that it can be adopted, used effectively and amended when the new government comes in.

"This is an abysmal piece of legislation and totally unacceptable anywhere. In fact, it is a frightening piece of legislation. It does not appear to have any cultural relationship to East Timor."

The main concern is the imprecise language, resulting in a document full of contradictory laws.

But Mr Cavanagh warned that the UN draft was also inconsistent with the the UN's human rights code and could be used as an instrument of oppression.

Sub-section 29.3 refers to requiring a warrant for an intrusive body search but does not stipulate conditions for the issuing of a warrant, such as "reasonable grounds to believe that material evidence may be found in the person's body".

Rules covering hearing proceedings are riddled with potential problems. There is no provision in the draft to shorten proceedings if an accused wants to plead guilty.

The draft has the potential to admit unreliable or fabricated evidence because there are no provisions covering leading questions.

On forensic examination and exhumation, they warned that re-exhumation was forbidden under the proposed UN law.

Yet more than 200 bodies had already been exhumed and reburied by investigators in late 1999 and early 2000 because no pathologist was available.

"In effect, these bodies cannot be the subject of an investigation if this regulation is passed. We have been urged by those working in the area to bring this oversight to the relevant authorities," the report said.

UN and East Timorese human rights officials estimate as many as 1,500 independence supporters were murdered in post-ballot violence last September.

UN jails hold 112 detainees, about half of whom were members of pro-Jakarta militias armed and trained by the Indonesian military but who now face charges of murder or multiple murder.

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