Timor-Leste’s Legal Aid Lawyers Offer Vital Voice on Draft Legal Aid Law

August 24, 2011

By Geoffrey Swenson

Last month, Timor-Leste took a commendable step toward institutionalizing free legal assistance for its citizens who cannot afford it. Although the exact shape of legal assistance for the disadvantaged here remains uncertain, the unveiling of an eagerly awaited revised draft legal aid law by the Ministry of Justice on July 15 marked a significant step forward.

Above, community members consult legal aid workers in rural Oecussi. Legal aid organizations work in isolated communities that are still out of the reach of the formal justice sector.

The Ministry then held an official comment period that lasted until Aug. 5, 2011. Perhaps most importantly, the draft law shows that Timor-Leste takes its constitutional commitment to provide equal access to the courts, regardless of economic background, seriously.

The law deserves praise for generally upholding international standards relating to access to justice. For example, the draft legislation provides for wide legal aid coverage for court representation in criminal, civil, and administrative matters, availability of legal aid at all stages of the process, and payment of related expenses for participants in judicial proceedings.

Fully understanding the draft legal aid law requires a bit of background, however. Timor-Leste has long demonstrated a commitment to providing legal aid services. It created the Public Defenders’ Office in 2001, but the newly independent nation’s capacity remains limited and cannot meet all of its legitimate legal needs, particularly in rural areas where 70 percent of the population resides. As a result, legal aid organizations, including those supported by The Asia Foundation’s Access to Justice Program funded by USAID – such as Fundasaun Edukasaun Comunidade Matebian, Fundasaun Fatu Sinai Oecusse, LBH-Liberta, and the Justice System Monitoring Program’s Victim Support Service – fill this void. These non-governmental organizations defend suspects in court in the absence of a state public defender. They offer invaluable support in the nation’s effort to meet its obligations to protect and defend its citizen’s rights by representing victims’ interests and assisting with civil matters.

The active participation of legal aid organizations during the comment period was a particularly welcome development. The joint submission from the organizations to the Ministry of Justice effectively detailed the strengths of the draft law and areas of concern. While generally very positive, the legal aid lawyers noted some key challenges with the draft legislation:

• Ongoing shortage of qualified private lawyers. Timor-Leste is still in the process of implementing regulations and professional standards for private lawyers. Under the 2008 Private Lawyers Law, currently practicing lawyers must attend a 15-month theoretical and a nine-month supervised practical training. The law established a four-year grace period to complete the course, which is set to expire in July 2012. The potential impact of the current draft, coupled with the impending deadline for currently practicing lawyers to complete training at the Judicial Training Centre under the 2008 Private Lawyers Law, means that legal aid services will decrease dramatically after the July 2012 deadline. This leaves an extremely small group of private lawyers eligible to supplement the legal aid services provided by the Public Defender’s Office. Unless the Private Lawyers Law is amended to extend the time period for lawyers to qualify, there will be at most 14 qualified or trainee private lawyers by July 2012. Without state support for the supervision of trainee private lawyers outside Dili during their nine months of practical training required to qualify, it is likely that the small pool of qualified lawyers or trainee lawyers will be concentrated almost exclusively in the capital city.

• The draft law does not provide any state support for legal advice by private lawyers or legal aid organizations unless linked with a preexisting formal court proceeding. Instead, the draft legislation relies on the proposed Bar Association, an organization that has yet to be established. The fact that the law does not provide state funding for legal advice by private lawyers significantly limits the community’s access to legal services that would not amount to formal legal representation in court. Thus, the cumulative impact of the draft legal aid law and the Private Lawyers Bill will result in a very limited number of lawyers being eligible to apply for grants of legal aid under the law.

• The resources provided by the law will be heavily focused on the capital Dili where roughly 33 percent of the population resides. While provision of legal services in Dili is vital, it is also by far the easiest place to secure legal assistance. In fact, Dili already enjoys a disproportionate share of resources. The legal aid lawyers feel it is essential that the law does not inadvertently establish a situation where the legal aid law provides for less legal assistance outside Dili rather than more.

The government should be commended for its openness to input on the draft law. With the benefit of comments from legal aid organization and other observers, the Ministry of Justice will now start revising the legal aid law. While it will take some time before the final bill is unveiled, a new legal aid law will no doubt radically transform the provision of legal aid in Timor-Leste.

The Asia Foundation, through its Access to Justice Program supported by USAID, has been actively involved in helping ensure the legal aid law provides a meaningful avenue to justice. At the request of the Ministry of Justice, the Foundation has provided technical assistance in supporting the creation of a viable legal aid system that is sustainable, cost-effective, and successfully protects the rights of all East Timorese, especially vulnerable groups such as women and economically disadvantaged persons. Read more about The Asia Foundation in Timor-Leste.

Geoffrey Swenson is The Asia Foundation’s legal adviser in Timor-Leste. He can be reached at [email protected]. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

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