Comments on the Proposed Amendment to the Provedor Statute

Bipin Adhikari
October 2007

The office of the Provedor is in the course of proposing certain amendments to the Statute 7/2004. In general terms these changes seek to ameliorate and clarify the means the Provedor has to accomplish his/her mandate. They also intend to incorporate the PDHJ Advisory Council, which the Provedor has already created as an administrative act to advise him on several important issues, within the framework of the Statute. Except for theses specific purposes, we do not recommend major overhaul of the Statute at this stage.

Article 16A: Advisory Council
A new Article 16A should be inserted in the statute to implement the PDHJ concept paper on the Advisory Council as approved by the Provedor in September 2004.

16A.1 There shall be an Advisory Council comprising of at least eleven members in the office of the Provedor for Human Rights and Justice to aid and advise the Provedor in the discharge of his functions under this statute.

16A.2 The members of the Advisory Council shall be appointed by the Provedor in consultation with the Deputy Provedors and the civil society organizations in the best spirit of diversity, inclusiveness and pluralism. They may comprise of the prominent activists, professionals or representatives of the following civil society units:

(a) Civil society organizations in the area of human rights, good governance and anti-corruption, including specialized nongovernmental forums focusing on the rights of women and children, gender discrimination, and democratization process.

(b) Vulnerable groups e.g. people with disabilities and from the communities with very low level of representation

(c) Religious groups or minority communities who are not represented in the Provedoria

(d) Members of regional fora, especially of those regions which are not adequately represented in the national mainstream

(e) Community organizations, particularly NGOs dealing with social issues such as health, housing, education, development assistance, subsistence agriculture, internally displaced persons, and indigenous peoples

(f) Members of the Association Advogado Timor-Leste and jurists

(g) Trade unions and professional groups (e.g. associations of teachers, accountants, engineers, doctors, journalists)

(h) Academics and researchers

(i) The independent media, and

(j) Corporate representatives, including business and industry association and private foundations, and

(k) Youth forums

16A.3 The Provedor and Deputy Provedors may consult the Council members, as per the Calendar or whenever they find it appropriate, if any issue of general importance to the Provedoria arises. It may include:

(a) Powers, duties and responsibilities of the Provedor and his/her management and development;

(b) Functioning of public authorities, notably the government, its agencies and private entities fulfilling public functions and rendering public services;

© Opinions, proposals and recommendations aiming at improving respect for human rights and good governance by the entities within the Provedor's jurisdiction;

(d) Awareness of human rights standards and mechanisms, including among those whose actions are particularly critical, such as police, security forces, prison staff and politicians as well as government officials and other workers in social fields;

(e) Advocacy for ratification of and accession to international instrument and treaties and harmonization of the national system with international standards, leading to an expansion of the range of human rights and good governance protection for individuals;

(f) Administration of justice, rule of law, and justice related issues, such as practices of the security authorities;

(g) Awareness and implementation of civil, cultural, economic, political and social rights,
leading to an improved quality of life, particularly for deprived communities;

(h) Partnership with civil society;

(i) Ad hoc programs for vulnerable groups and deprived population of Timor-Leste; and

(j) Initiative to encourage peaceful societal environment.

16A.4 The members of the Advisory Council shall take the same oath or solemn declaration as provided for the Deputy Provedors in Article 16.5 before the Provedor. They will serve as advisors to the Provedor in their personal capacity, and without any expectation of monetary gain including the provision of honorarium. Meeting allowance maybe provided to the Council members when they participate in the meeting.

16A.5 The Council shall meet as and when called by the Provedor but at least four times a year. The Provedor is responsible for calling the meeting and the overall management of the Council. S/he will chair all the meetings of the Council and ensure that the Council's business activities are soundly organized. The Council shall twice a year adopt schedules for Council meetings to be held during the next six months.

16A..6 In the absence of the Provedor, the meeting of the Council will be convened by one of the Deputy Provedors. In cases where neither of these is present, the Provedor shall elect a chairperson for the meeting from the senior officers of the Provedoria. Meetings shall normally be convened by at least seven days' prior written notice. The notice shall include an agenda of the meeting and any relevant document that might be discussed. In case of emergency, the Provedor may convene Council meetings with shorter notice and/or to distribute relevant documents after the notice has been sent.

16A.7 The Provedor shall ensure that minutes are kept of the proceedings of the Advisory Council. The minutes shall, as a minimum, state the time and venue of the Council meeting, as well as the participants, the proceedings and the resolutions adopted by the Council. If a resolution is not unanimous, it shall be stated who voted for and who voted against. If a member of the Council disagrees with a resolution, he/she may demand to have his/her view entered in the minutes. Drafts minutes shall be distributed to all members of the Council. Unless otherwise decided by the Provedor, the minutes shall be approved and signed at the next Council meeting. The minutes shall be signed by all members who participated at the meeting.

16A.8 The term of the members of the Advisory Council shall be three years from the date of appointment. Their mandate will be deemed to have expired in the following cases:

(a) expiration of the term
(b) deatgh
(c) resignation
(d) mental or physical incapacity to carry out his or her duties, attested by a medical panel
(e) final conviction for a criminal offencethat carries a prison sentence exceeding one (1) year
(f) final convictionfor a criminal offence punished by actual imprisonment;
(g) removal from office by the Provedor on the ground of lack of capacity, incompetence and immoral character.

16A.9 In the event of vacation of office for any reason, the Provedor shall, as soon as possible and for such time as he/she may decide, appoint a new member for the remaining period, according to the process under this Article.

Article 39: Self-incrimination
Art. 39 of the Law 07/2004 should not be deleted (as suggested from different quarters). But in order to serve for the purposes of the mandate of the Provedor it would be useful to modify it as we suggest hereunder:

Except for the purposes described in Articles 48 and 49, and cases of non-criminal nature under this statute, no statement made in the course of an investigation conducted by the Ombudsman for Human Rights and Justice or in any other proceedings being conducted by the latter shall be admissible as evidence in court, enquiry or any other procedure, nor shall such a statement be used against the person who made it "unless the suspect has been cautioned in accordance with the Criminal Code of Procedure".

Like this, if the Provedor takes a self-incriminating testimony, he will be able to use it as evidence if the suspect has been informed of his rights to defense, is assisted by a defence lawyer and know what the potential charges would be.

Article 41.6: Investigation Procedures
Art. 41.6 of the Law 07/2004 should read: "In conducting investigations of cases of non-criminal nature, the Ombudsman for Human Rights and Justice shall not be bound by the rules of civil and criminal procedure and evidence, but shall act objectively and fairly at all times. The investigations of the criminal nature are subject to the observance of penal procedure rules related to the production of evidence".

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