Notes from the Field

Legal Aid Moves from Donor to Public Financing in Timor-Leste

March 31, 2010

Last week, Timor-Leste’s Ministry of Justice released an initial draft law on state financial legal assistance, signaling a bold new initiative for the government. The law outlines a mechanism through which private lawyers can be paid by the state for their legal services in a court process, either criminal or civil, when representing clients unable to afford such services on their own. The law foresees private lawyers submitting applications to the presiding judge for payment of their fees.

The Ministry of Justice’s move to finance legal assistance runs contrary to criticisms often levied at international assistance programs; chiefly, that such aid breeds dependency and erodes local initiative. Instead, we have here a case where although donor funds were initially used to build the legal aid sector, the government’s recent moves demonstrate its resolve to support its side of the development partnership.

Over the last decade, USAID, through The Asia Foundation’s Access to Justice Program, has given grants to community civil society organizations staffed by private lawyers to provide legal aid. Today, these legal aid organizations account for approximately 85 percent of the legal representation seen in the courts.

While there are state-funded public defenders, they are few (roughly 1 per 100,000 Timorese) and are often stationary, located within one of four of the country’s district court houses. By comparison, there are 35 (or about 1 per every 30,000) USAID-funded legal aid lawyers who travel to remote villages for mobile legal clinics, often providing mediation while dispensing legal advice.

In this sense, unlike state-funded public defenders, private lawyers serve as bridges between formal and local justice systems. In Timor-Leste, over 70 percent of people live in rural areas governed by local customs with very little knowledge of legal procedures and rights. The Asia Foundation’s recent survey on Law and Justice in Timor-Leste suggests that one in three people have never even heard of a court, while 54 percent of say they have not heard of a lawyer.

Lawyers or not, few other good options exist for providing legal representation. Courts have been known to function in the absence of public defenders and private lawyers by calling a court clerk to serve as legal representative, and if that’s not an option, a volunteer is summoned from any person in the public assembled for the trial. Besides, training sufficient numbers of public defenders is estimated to take 10 or more years.

The new draft law is perhaps the best option at hand for providing Timorese citizens with access to legal representation and for fulfilling the intended role of the state as mandated in the Constitution, i.e. that “Justice shall not be denied for insufficient economic means.” Giving the public a choice of either public defender or private lawyer is likely to increase the quality of legal representation as lawyers compete for clients. The draft law offers a practical approach to extend the state’s provision of access to justice.

For private lawyers and other judicial actors, the extent of the government’s resolve is important. During last week’s consultations on the law with private lawyers, queries focused on the government’s political and economic motives. Lawyers and other participants asked such questions as:

What about payment for legal aid work that does not directly involve the court? For example, will coverage for mediation, legal advice, information, and outreach be compensated? What about legal advice provided to persons during police questioning?

How much will private lawyers receive in payment, based on which type of case?  How much will all of this cost the state?  Is the state really prepared to pay?

If a judge is a state official, won’t there be a conflict of interest if there is a case brought against the state?  How will the funding mechanism be free from political interference?

If clients have a choice over whether to seek a private lawyer or public defender, won’t this further weaken the role of public defenders? How will clients decide who should represent them?

How can clients prove they are in financial hardship (and require the state to pay for legal assistance) if they don’t have any documents?’ How will the judges decide who is eligible?

While answers to these questions require greater study and debate, the quality of these questions indicates a leap forward in the process of consultation in Timor-Leste. Instead of a single round of public consultation, the process is being held through two rounds of consultations – the first for judicial actors and then for the general public.

Additional improvements in the public consultation process can be made. While less than 7 percent of the general public say they speak Portuguese, more than 60 percent of Timorese say they prefer to speak Tetum, according to census and survey findings. The Ministry of Justice should disseminate the draft laws in Tetum, not only Portuguese, to allow citizens to meaningfully participate in the consultation process and increase the relevancy of proposed legislation.

This is indeed a very important space to watch. According to officials in the Ministry of Justice, the next draft of the law on legal assistance will be available for public comment by May 2010, and the final version will be submitted to the Council of Ministers perhaps as early as September 2010.

Silas Everett is The Asia Foundation’s Country Representative in Timor-Leste. He can be reached at severett@asiafound.org.

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