06 August 2008

Reflections on the Law-Making Process in East Timor

Judicial System Monitoring Program Justice Update 22 July 2008


This Justice Update will consider some of the processes of legislative development in Timor-Leste, and provide analysis on areas of concern.

The National Parliament is an institution charged under the Constitution with producing laws in the interests of the community. One of the primary functions of Parliament is the drafting of laws.

Members of Parliament are assigned to commissions, which consider policy in different areas of government. Each commission is responsible for preparing and discussing draft laws on issues relevant to their portfolio, which are presented for the consideration of the Council of Ministers. This approach, properly executed, should allow subject matter expertise to be developed among Commission members in order to craft adequate solutions to problems in the Comissions’ different areas of speciality.

The Council of Ministers, comprising the heads of each government department, has the power to put draft laws to the Parliament for further scrutiny and debate. It may also issue decrees that give effect to certain decisions (international agreements, for example) that do not need parliamentary approval. It may also consult stakeholders in order to inform policy debate, though regrettably this authority is rarely exercised.

Individual members of parliament may also propose draft laws by direct petition to a full session of Parliament. Since these have not reached consensus through the commission system, they are then subject to detailed review. Care must be taken with legislative proposals that have circumvented the usual route of commission scrutiny.

A period of consideration is necessary for draft laws to be appropriately analysed. JSMP, through interviews with parliamentarians, recently found that a number had abstained from voting on the Private Lawyers’ statute because they had insufficient time to consider the Bill, and did not understand its content. Clearly processes to educate MPs on the legislative agenda are in need of reform.

The parliamentary rules of procedure empower each commission to organize consultation with stakeholders, or to arrange a public audience to discuss policy initiatives. JSMP has observed that such consultations are generally undertaken only in the capital, Dili. Rarely have people in the districts been consulted about the contents of draft laws, which brings fair representation into question.

Other, more centrally located stakeholders are regularly overlooked. For example, the law on arms recently introduced by the Prime Minister proposes that the PNTL be responsible for a system of gun registration – JSMP has learned that there was no program of consultation with police prior to the introduction of this legislative proposal to Parliament.

Once a law is passed by the Parliament, it is assumed for the purposes of enforcement that every citizen is aware of its meaning and application. In addition to public consultation, then, the community should be kept informed about legislation as it is enacted so that they are aware of how it may impact on them.
With no consistent governmental mechanism for disseminating legal developments to the public, adherence to the law becomes problematic. This is especially true given the proportion of Timor’s population that lives outside of district centres.

The presence of courts in Baucau, Suai and Oecusse may serve as a focal point for education about judicial process. However, outside of these district centers customary law seems to be a more familiar and available method of dispute resolution.

The process of drafting a law must also take into consideration historical and sociological factors borne of context. This need to reflect local conditions is contravened by reliance on colonial models of legal doctrine. Portuguese laws, forr example, which fit into a different domestic context of protections and constraints, should not be adopted as templates for Timorese law without considerable modification.

Given Timor is a young democracy with still little regulation over political action, guarantees or protections implied in other, more established, legal systems should not be taken for granted when drafting laws for this country. Perhaps, rather than looking to legislative influences such as Portugal that share little in terms of development, useful comparisons might be made in looking to other post-conflict states.

JSMP has witnessed many legislative initiatives being developed and prepared for debate. Many have seemingly failed to proceed. Aside from issues of political priority, this backlog of draft may be attributed in part to the failure of parliamentarians to attend sessions in which the contents of draft laws are discussed.

The scheduling of sessions to enable the commissions to discuss urgent issues includes setting an agenda for the discussion of draft laws. Often the discussion of draft laws is delayed because less than two thirds of members are present and therefore a quorum cannot be established. These factors prevent the Parliament from completing its work in an efficient and effective manner.

Language presents a considerable hurdle to effective and participatory legal development. There is concern that Portuguese is used to draft every law, which is a problem for a number of parliamentary members who have limited ability in this language, as well as for the majority of the Timorese public who do not speak it well. The use of legal jargon, however necessary, further hinders comprehension.

A number of parliamentary members and members of the community have voiced their concerns about the language issue. It has been suggested that the original text drafted in Portuguese should be translated into Tetun so that parliamentarians can all properly understand, and voice an opinion on, the draft laws for which they are collectively responsible.

In conclusion, JSMP calls on the Parliament firsly to allow its commission system to operate more fully as a consultative mechanism, inviting input from the public and sector stakeholders alike. This process should allow parliamentarians to become familiar with a policy area, and to communicate legislative proposals to political colleagues and the public alike.

With no office yet established to communicate legal information to the citizenry, this burden will remain with MPs and civil society. Conducting debate in a language better accessible to all would improve the quality of debate, enabling Timorese conditions to be better addressed in drafting. It would also assist subsequent dissemination, which in turn may increase compliance with the law.

For Further information please contact: Casimiro dos Santos, JSMP Acting Director
Email : casmiro@jsmp.minihub.org Landline: 3323883

Post sponsored by East Timor Law Journal - Towards the rule of law in East Timor!

No comments: