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| Image front page East Timor Government Gazette |
Original Citation: 2009 ETLJ 9
Introduction
Introduction
Legal
information on East Timor is difficult to find even on the web. There are
hardly any East Timor law-dedicated sites even though it has been 6 years since
East Timor won its independence. The other problem is that even when access to
East Timor legislation is found, new laws are issued by the East Timor
Parliament and the Government only in the Portuguese language which hardly
anyone in East Timor can understand. Although Portuguese is spoken by many
people (for example, in Brazil and Portugal), the distribution of this language
throughout the world is also very limited.
Language
of the Law and the Rule of Law
The language
issue presents serious problems for the whole idea of the rule of law in East
Timor: How can citizens be expected to comply with law that can not be read by
the ordinary person? Even lawyers have difficulty interpreting law when they
know the language in which the law has been drafted. It is incomprehensible
that a government in any country would issue laws in a language that is not understood
by its citizens and the East Timor government needs to review this policy.
This also
presents problems not just for the citizens but also for the police and private
lawyers trying to advise their clients about their legal rights and obligations.
Again, hardly any of the police in East Timor understand Portuguese so how can
they enforce the law properly? Similarly, the private lawyers in East Timor
were nearly all educated in Indonesian law schools and have never learnt
Portuguese so they also encounter grave difficulties in advising and
representing citizens charged with criminal offences.
How can we
speak of the efficacious rule of law in East Timor in these circumstances?
Legal
Language and the Courts in East Timor - Problems in the Administration of
Justice
In the courts
of East Timor, the language problem in even worse when it comes to the
administration of the law by judges. The government of East Timor has been
appointing foreign judges from Portugal to the bench in East Timor. The consequences
of this are also of concern. The first problem here is that the vast majority
of the applicable law in East Timor is based on the Indonesian legal system and
only available in the Indonesian language.
The Portuguese judges
can not read Indonesian and there is a scarcity of Portuguese/Indonesian
translators so in order for the Portuguese judge to understand the law that he
or she must apply, the Indonesian text has to be translated into English and
then translated again into Portuguese. In this double translation process, the
fine nuances of legal words and phrases and even the whole spirit of the
original text are distorted, if not lost. In these circumstances, it would not
be surprising if there were cases of miscarriages of justice for the people of
East Timor.
The second problem that
the language issue presents to the Courts of East Timor is that while the judge
is conducting the proceedings in his or her mother tongue, namely, Portuguese,
the police and the accused will in most cases not understand this language and
will only be familiar with either Tetum or Indonesian. So everything must be
translated and interpreted.
And again, sometimes
there has to be a double translation which carries the risk described above of
losing the original meaning of the law or of the evidence. Here, the issue can
often be even more complicated if, for example, the judge is speaking in
Portuguese, the prosecutor is using Tetum but the defendant or the accused may
only speak his or her regional language.
In remote areas of East
Timor, even Tetum and Indonesian are not understood and one of as many as 35
different regional languages may be the mother tongue of the defendant or
accused. So the language problem and the interpretation and meaning of law and
evidence is further compounded by this.
Issues for
Non-Portuguese speaking Critiques of East Timor law
One of the important
aspects of any legal system is the capacity for it to be subject to constant
scrutiny and critique. Law should never be carved in stone so that it is
unchangeable. The law must evolve with society.
The law must also comply
with fundamental human rights precepts and the Constitutional regime governing
the enactment of legislation. While foreign critiques of a nation's law might
be ignored by the legislators, there are many prominent and learned
international jurists who are able to assess a nation's laws to see if they do
comply with basic standards of justice and equity and, if necessary, trigger a
reform movement that might be participated in by national citizens and entities
who advocate for law reform within a country.
Reliable English
translations are also of critical importance for foreign investors who need to
know the legal regime governing their investment and activities. In East Timor,
it is only because of the United Nations office (UNOTIL) that most of the laws
enacted by the Parliament and the Government of East Timor have been translated
and published in English. Although the translations are not official
translations, they are still a valuable source of legal information on East
Timor for these purposes.
Warren L Wright BA LLB
Copyright 2009 Image Copyright 2018
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