Submission to the Faculty of Law, Universidade Nacional Timor Lorosa’eIn the Matter of a Review to Develop the Quality of National Law
Author: Mr. Warren Leslie Wright BA LLB Dip Leg Prac
Solicitor, Proctor & Attorney-at-Law
Supreme Court of New South Wales
High Court of Australia Principal, Wright Law & Justice
INDEX
Paragraph Title Page
Objective of Study and Acknowledgements 1
Introductory Remarks 1
Further Prefatory and Contextual Observations 2
The Constitutional Framework of Law Creation: Constitutional Democracy 2
The President 2
The Supreme Court of Justice 2
The National Parliament 3
Legislative initiative 3
Executive Law Making 3
The Ministry of Justice and the Ministry of Legislative Reform and
Parliamentary Affairs 3
Observation 3
Part 1 Looking Forward: A Theory for Legislative Drafting Including A Practical Problem-Solving Methodology for Democratic Transformation 4
Introduction Unique Legal History of East Timor 4
The Applicable Law 4
The Sources of the Law of East Timor 4
The Parliament and Legislation as the only immediate source of law 5
Parliament as the Primary Law Creator 6
National Legislative Program 6
Intellectual foundation of law creation methodology 7
Law and Legislative Drafting in the Developing State and the Cultivation of Democracy 7
Legislative Drafting for Democratic Social Change An Intellectual Theory of Legislative Drafting in Developing States 8
Salient Features of the Problem-Solving Methodology 8
Role Occupants, Implementing Agencies and Problematic Behaviour as the
Cause of Social Problems 8
ROCCIPI 9
ROCCIPI Elemental Factors 10
Observation 11
Legislation and Good Governance 11
Introduction of legislative drafting methodology to the National Parliament of
East Timor and civil society 2001 – 2002 12
Civil Society and Parliament 12
Other Methodologies 14
Ends-Means 14
Incrementalism 14
Both Alternative Models Rejected 15
An Institutionalist Legislative Theory and Problem-Solving Methodology 15
Part 2 Looking Back: Revision of Existing Legislation 15
General Categories of Possible Problematical Laws in Force 16
The Problematical Applicable Law 16
Law Reform Commission General Observations 17
Role and Function of Law Reform Commission 17
The East Timor Law Reform Commission 18
Part 3 The Judiciary and the Completion of the Court Structure 19
The Status of the Courts 20
Part 4 Customary Law 21
Part 5 Legal Education and International Technical Assistance 24
Education 24
Institutions of Higher Legal Learning 24
Judicial Training Centre 24
The Faculties of Law 24
Technical Assistance - Foreign Legal Experts 24
International Technical Legislative Drafting Theory and Problem-Solving Methodology Assistance 25
The Ministry of Justice and The Ministry of Legislative Reform and
Parliamentary Affairs 25
The Legal Profession 26
Part 6 Language and the Law 26
Implications for the Rule of Law 26
Lost in Translation 27
Observation 27
Part 7 The Constitution & Constitutional Reform 27
Summary 28
Bibliography & Sources 29
Objective of Study and Acknowledgements
This short study is motivated by the central consideration being a review to develop the quality of national law.
This study is a submission to that review in response to an invitation from the Dean of the Faculty of Law of the Universidade Nacional Timor Lorosa’e.
The author acknowledges The Dean of the Faculty of Law at the Universidade Nacional Timor Lorosa’e, Dr. Isidoro Viana da Costa, as my most learned friend in The Law, and every Faculty Member in their undertakings as Teachers of the Law.
The author is deeply honoured to have been invited to make this submission that seeks to be consistent with the Faculty’s mission to develop the critical-reflective capacity of students-at- law, their understanding of legal phenomena, and, more particularly, the function of the Law of regulating good governance.
My considerations of this matter are set out accordingly.
Introductory Remarks
This study does not seek to enquire into nor assess the quality of the body of national law as it exists by any standard by which it might be measured.
It is not a critical study. It proposes nothing new. It is a merely a rearticulation of existing juridical thought and reason by the jurists who posited, articulated and implemented the intellectual core of this submission; namely, Professors Ann Seidman, Robert B. Seidman and Nalin Abeyesekere, University of Boston School of Law, expressed in the text Legislative Drafting for Democratic Social Change: A Manual for Drafters.1
What perhaps may be new is that, coincidentally, this study is further informed by the prior experience of the author in the initial introduction into the country of the theory and methodologies elucidated on the following pages. The role of the author in the Legislative Drafting Initiative (LDI) in the National Parliament and civil society is mentioned further in Part 1. 2
1 Legislative Drafting for Democratic Social Change: A Manual for Drafters Kluwer Law International ISBN 9789041197931
2 The author also directed the East Timor Community Legal Education Program on behalf of the University of San Francisco School of Law Center for Law and Global Justice. The author’s contemplation and observation of the legal system spans almost 2 decades including 5 years direct experience of the country’s life and the early law and justice sector. The author was a participant in the international hiatus (UNTAET Property Rights Adviser 2000-2002) and witness to lawmaking during that period, particularly the Constitution. Thereafter, the author has made numerous studies of particular laws, legal problems, land and constitutional policies and laws, social problems, the judicial system, the Constitution and, particularly, problems in governance. Further, by coincidence, the author is also a student of the Indonesian legal system, at the highest intellectual level, a Masters level study of Indonesian Law at the University of Sydney, augmented by 2.5 years as a participant in the legislative review and drafting processes of the Indonesian National Land Agency that were necessary for the mass land right registration reformation under the Indonesian Land Administration Project. The author is also a former government legal officer with the carriage of the drafting and enactment of new laws by the Parliament of the State of New South Wales. The author wishes to disclose prior interest in East Timor. 2000 UNCHS (Habitat) Researcher on the Reconstruction of the Land Record in East Timor. 2000 External Adviser UNTAET/ETTA Departments of Infrastructure Justice Land and Property Unit. 2000-2002 Property Rights
This study does not enquire into any particular law or set of laws that might be inimical to the concept of good law - quality law - or that might be inconsistent with the philosophies, social and political theory or the tenets of constitutional democracy under the rule of just law. Instead, it purposely looks forward to insisting on a legislative drafting process that is rational, technically perfected in its drafting towards good governance and does not violate the principles of constitutional democracy.
In short, a method of ensuring that future laws constitute good law, law that stands scrutiny and critique for irrationality, erroneous construction and failed implementation or worse, that confer wide discretions and arbitrary decision-making powers on executive agents of the State in the implementation of laws – whether transplanted or generated by the autonomous Legislature and Government that have exercised law creating power since 20 May 2002.
Nonetheless, the study does extend, in Part 2, to the general consideration of the existing body of law from the perspective of the objective of creating and sustaining the quality of national law to a standard that is consistent with constitutional democracy. Again, no particular law will be scrutinised. Instead, the institutional pre-requisites for looking back at the existing legal system and particular laws are reiterated; namely, an invigorated law reform process and the extension of methodology advanced in Part 1 to the law reform process so that it too is consistent with the constitutional norms and references the principle ideas of the theory propounded in this brief study.
Further Prefatory and Contextual Observations
The Constitutional Framework of Law Creation: Constitutional Democracy
The Constitution proclaims East Timor as a democratic, sovereign, independent and unitary State based on the rule of law. It further declares that the State is subject to the Constitution and to the law and that the validity of the laws and other actions of the State and local Government depends upon their compliance with the Constitution. The Constitution defines and confers crucial roles on the organs of State in relation to legislation and constitutionality.
The President
It is exclusively incumbent upon the President to request the Supreme Court of Justice to undertake preventive appraisal and abstract review of the constitutionality of the rules, as well as verification of unconstitutionality by omission.
The Supreme Court of Justice
The Supreme Court of Justice is the highest court of law and the guarantor of a uniform enforcement of the law. It is incumbent upon the Supreme Court of Justice on legal and
Adviser to the United Nations Transitional Administration in East Timor (UNTAET)/Mentor to Head of Land and Property Directorate, Department of Justice. 2002 The Asia Foundation BASICS Project, Legislative Drafting Adviser to the Secretary of State for Foreign Investment (draft Foreign Investment Law). 2002-2004 Project Director, University of San Francisco School of Law Center for Law and Global Justice Legislative Drafting Initiative (LDI) in the National Parliament and civil society and the East Timor Community Legal Education Program (CLEP). 2005 International Evaluator, European Union 2008 International Evaluator, Caritas Australia 2000 - 2018 Publisher East Timor Law and Justice Bulletin and East Timor Law Journal. The author has published numerous articles, analyses, observations and notes on the law of East Timor.
constitutional matters to review and declare the unconstitutionality and illegality of normative and legislative acts by the organs of the State.
The Supreme Court of Justice may provide an anticipatory verification of the legality and constitutionality of the statutes, as well as referenda. It is the exclusive jurisdiction of the Supreme Court of Justice to verify cases of unconstitutionality by omission and to rule on the suppression of norms considered unconstitutional by the Courts of first instance.
The National Parliament
The National Parliament is the sovereign body of the Democratic Republic of East Timor representative of all citizens vested with legislative powers.
Legislative initiative
The power to initiate laws lies with the Members of Parliament, the parliamentary groups and the Government.
Executive Law Making
It is incumbent upon the Council of Ministers to approve bills and statutes that are not required to be submitted to the National Parliament.
The Ministry of Justice and the Ministry of Legislative Reform and Parliamentary Affairs
These portfolios of the Executive are instrumental implementing agencies in the legislative process and reform.
Observation
These provisions of the basic law, the democratic institutions of law making and their role in the legislative process and the roles and separated powers of the organs of State constitute the basic framework within which lies this consideration of the development of the quality of the national law.
The dictatorship of the Constitution, the fundamental propositions set out in the Constitution, insist uncompromisingly on constitutional democracy founded upon the rule of law. The paramountcy of the rule of law is demonstrated by the constitutional adoption of the separation of powers and democratic legislative process.
This is the standard to which the theory of legislative drafting for democratic transformation and the methodology for legislative drafting is set, always bearing in mind these provisions of the basic law.
Part 1 Looking Forward: A Theory for Legislative Drafting Including A Practical Problem-Solving Methodology for Democratic Transformation
Introduction Unique Legal History of East Timor
The pluralistic and fragmented laws of developing countries reflect their history. There is a complexity that renders the jurisdiction unique through the historical interaction between spheres of highly inconsistent legal systems, distortion or displacement of indigenous law, the extension then displacement of Portuguese law, transplantation of a second foreign legal system and laws, its formal entrenchment by international legal instrument and further reinforcement by the National Parliament.
International norms were extended and ad hoc legislative interventions effected by the United Nations administration during the UNTAET period. With full sovereignty of the nation restored, the Parliament and the Government began enacting the country’s own national law.
“It is indeed a daunting task to harmonise, co-ordinate and integrate the various elements into a coherent whole.”
The Applicable Law
The Indonesian legal system was first extended to operate in the national territory under illegal occupation by the Indonesian Law No 7 of 1976 on the Legalisation of the Unification of East Timor into the Unitary Republic of Indonesia. Paragraph 4 of the General Elucidation of Law No 7 of 1976 states that, upon integration, the People of East Timor become People and Citizens of Indonesia and all legislation of Indonesia applies in the territory of East Timor.
All institutions and agents of the Indonesian State were established and administered the Indonesian law.
Of more central concern is the Indonesian legislation that does continue to operate in East Timor. Legislation from the Indonesian State is so voluminous and so problematical – full of unconstitutionality, exercises of ultra vires power, wide political discretions, arbitrary decision making and corruption opportunities when assessed through the lens of the democratic legislative drafting principles that only a long-term reform process as recommended in Part 2 hereof can begin to approach with a view to legislative reformation and enhancement through reform.
The Sources of the Law of East Timor
The first international law, UNTAET/REG/1999/1 27 November 1999 Regulation No. 1999/1 On the authority of the transitional administration in East Timor, entrenched the Indonesian legal system in force as at 25 October 1999, subject to a general incompatibility exception and several specific exceptions including the death penalty, as the foundation, structure and content of East Timor’s national law.
Notwithstanding UNTAET Regulation No 1999/1, and the accepted juridical comprehension of the meaning of the regulation, the country’s highest Court decided that the applicable law of East Timor was Portuguese law. This decision was characterised as an interpretation of the
law that was “aloof from reality” and “in violation of the most elementary rules of legal hermeneutics” that climaxed to an “absurdity” and generated potential “institutional crisis that would otherwise not exist”.
Pursuant to Articles 92 and 95.1 of the Constitution of the Republic, the National Parliament enacted Law No 2/2003 Interpretation of Section 1 of Law No. 2, of 7 August and Sources of Law. This Law is of such centrality to the present deliberations that its provisions are set out.
Section 1 Authentic interpretation
Under the terms of the provision of section 1 of Law No. 2/2002, of 7 August, applicable legislation in East Timor on 19 May 2002 means all Indonesian laws applied and that were in force “de facto” in East Timor, prior to 25 October 1999, as provided by UNTAET Regulation No. 1/1999.
Section 2 Sources of law
1. Legislation is the only immediate source of law in Timor-Leste.
2. Legislation is generic provisions issued by the competent organs of the State;
3. The sources of law in the Democratic Republic of Timor-Leste are:
(a) The Constitution of the Republic;
(b) Laws emanated from the National Parliament and from the Government of the Republic;
(c) Subsidiarily, regulations and other legal instruments from UNTAET, as long as these are not repealed, as well as Indonesian legislation under the terms of section 1 of the present law.
The Parliament and Legislation as the only immediate source of law
Together with the above-mentioned Law, the Constitution reiterates the supremacy of Parliament in the East Timorese polity.
Article 92 (Definition) The National Parliament is the organ of sovereignty of the Democratic Republic of East Timor that represents all Timorese citizens and is vested with legislative supervisory and political decision-making powers.
Article 95 (Competence of the National Parliament) 1. It is incumbent upon the National Parliament to make laws on basic issues of the country’s domestic and foreign policy.
Article 97 (Legislative initiative ) The power to initiate laws lies with:
The Members of Parliament;
The parliamentary groups; The Government.
The beginning point for the consideration of the question of the development of the quality of national law is the foundational constitutional supremacy of Parliament in the law-making process and the reality that Parliament is the institutional machinery of the State creating Law in the form of Legislation.
All of this is coherent to conventional conceptualisations of democratic principles. The present analysis proceeds on the assumption of a democratic law-making process as the paradigm within which the explication of methods to enhance the quality of the Law are articulated; rather than a Statist or other undemocratic context.
This paper looks forward to the future development of quality national law. It does not purport to examine the present objective or subjective quality of the existing law. However, the second part of this paper does seek to elucidate the qualitative enhancement of existing laws through the creation, development and enhancement of legal institutions dedicated to this purpose.
Parliament as the Primary Law Creator
It is established by the Constitution and democratic tenets that the Parliament has the primary law-making power. It is legislation enacted by the Parliament that creates the law and either contributes to or detracts from the quality of the nation’s law; of the objective qualitative integrity of the law as an expression of democratic power that will do its work as intended and resolve social problems.
The second assumption behind the theory outlined in this paper is that the fundamental purpose of the law is to justly resolve social problems and maintain the civil peace. Law is enacted to set rules governing problematical behaviours that generate social problems that may even threaten the civil peace. The ultimate goal of legislation is to manage social problems and sustain good governance.
It is therefore the central proposition of this analysis that, in the consideration of the question of a revision to develop the quality of national law, the primary focus be on the Parliament and, more particularly, the intellectual methodology deployed to create new law; an intellectual methodology that forms the foundation of good law.
National Legislative Program
The following extract from a recent study by the Judicial System Monitoring Program (JSMP) is respectfully noted. It reflects the author’s views.
“The National Legislative Program is a planned or programmatic tool that involves identifying legislative priorities that have been designed in a systematically, integrated and accessible fashion during a legislature.
Since April 2010 JSMP has observed the work of the National Parliament, particularly in the Plenary and Committee A, and JSMP has found substantial challenges in that the National
Parliament has not yet institutionalised a “National Legislative Program” to help the National Parliament identify legislative priorities for each year based on the actual interests and needs of the people or the national interest. JSMP observed that problems relating to the lack of a National Legislative Program have affected the productivity of the legislative in each legislative session or legislative year to date.
JSMP believes that the National Legislative Program will help the National Parliament to carry out its legislative role more effectively and productively based on the roles and competencies provided in the Constitution and the law….
To do this, a technical team of the National Parliament needs to consult with relevant entities, civil society, academics, individuals or experts in relevant areas and other components of society. This process will ensure that the legislative process will be conducted in a transparent, accommodative, necessary and useful manner and will promote public participation in legislative processes.
As discussed previously, JSMP observed that the National Parliament has engaged in a range of efforts but because there is no National Legislative Program, many laws that have been brought before the National Parliament for discussion have not be approved and have expired during previous legislatures….
[paragraph omitted]
JSMP believes that the National Legislative Program will transform the work of the National Parliament to be more productive and effective and at the same time will increase the credibility of the National Parliament. JSMP is also convinced that if the National Parliament managed to establish a “National Legislative Program” there would be no more draft laws pending or expired, as experienced during previous legislatures or it could avoid and minimise the risks of this occurring.”3
Intellectual foundation of law creation methodology
All sophisticated legislative processes are based upon a completely elucidated intellectual methodology. The methodology is the conceptual framework within which law is written. If the methodology is sufficiently implemented, it will result in the generation of a draft law which is then put to further scrutiny and modification by the legislative drafting process primary of which is a further expression of the democratic relationship between citizens, the State and the Law; namely, public consultations.
Law and Legislative Drafting in the Developing State and the Cultivation of Democracy
The selection of legislative drafting methodology is dictated generally by the social, political and economic conditions in which the law will be made and operate.
While the doctrine of transplantation of laws from foreign jurisdictions remains an option as a means of development of a nation’s law, it is not a substantive sovereign democratic
3 Progress and Challenges relating to Legislative Developments in Timor-Leste JSMP Submission to the National Parliament 2018. Paragraphs 1, 5.
process that is supported by this study. It is not an autonomous exercise in democracy which is the basic formula for just legislation that is informed by experiential and empirical evidence and reason; one that is not subject to substantive criticism as law having a character that is less than optimal and ineffective as a constituent of a developed national law.
Law is central in development debates, policies and projects. Law is the vehicle of the promotion of economic growth, human rights and democracy. A nation’s institutions define its relative poverty and vulnerability, but also the quality of its governance. Accordingly, the objective of improved national laws devolves and centres upon the law-making authority, the Legislature.
Institutional strengthening is a common theme throughout development programs and it is the strengthening of the Parliament as an institution, as the primary sovereign representative organ of State, in its capacity to legislate good law that any initiative towards the development of the quality of national law must have as a prerequisite point of reference.
Legislative Drafting for Democratic Social Change An Intellectual Theory of Legislative Drafting in Developing States
The recommended legislative drafting theory was developed by Seidman, Seidman and Abeysekere4 is not a new theory nor is it one that is unknown in East Timor since the implementation of the Legislative Drafting Initiative in the Parliament and with civil society organisations by the University of San Francisco School of Law Center for Law & Global Justice in 2002-2004.
The theory’s title is self-elucidating. The theory expands into a complete explication of its implementation in reality and therefore also constitutes a manual of the practice of bill creating of the highest effectiveness. The application of the theory generates a structured coherent draft law that rests upon policy informed by evidence and reason that is also generated by following the methodology itself.
This submission strongly recommends the entrenchment of a sound, completely elucidated academic theory of legislative drafting; a methodology deployed by law-makers to generate new law to resolve social problems and one that has been demonstrated to operate efficaciously in practice. The legal product at the end of the process is sound. High quality legislation results thus enhancing the development of quality law like no other method can.
Salient Features of the Problem-Solving Methodology
The methodology may be conveniently referred to as the ROCCIPI methodology, or simply, ROCCIPI. The problems to which the methodology is applied are identified and defined social problems.
Role Occupants, Implementing Agencies and Problematic Behaviour as the Cause of Social Problems
Social problems are generated by problematical behaviour of Role Occupants and Implementing Agencies. Role Occupants are the individuals, organisations, groups,
corporations, political parties, the Government, the sovereign organs of State and any other “stakeholder” that has an interest in or whose problematical behaviour contributes to the social problem. Law is the manner in which contemporary civilisations regulate the behaviour of its members and constituent institutions, to control or induce behaviours that eliminate the social problem.
Legislation is the key to resolving social problems. Legislation must be preceded by policy. ROCCIPI provides a systematic way of formulating policy informed by evidence and reason, and evidence and reason alone. It results in a research report that is the core of the policy. It further results in draft legislation that can be the basis of further development through the transparency of democratic participation in both policy formulation and law making.
Implementing Agencies are ordinarily agents of the State that can take many forms. At the highest, they include the sovereign organs of State, at a routine level, they may be Ministers, Departments, Directorates, Secretariats, or any other agency involved in the administration of legislation.
Both the identity and description of the problematical behaviour of Role Occupants and Implementing Agencies is the subject of study and analysis through the seven ROCCIPI factors.
ROCCIPI
The ROCCIPI acronym’s letters derive from the following words: R – Rule
O – Opportunity C – Capacity
C – Communication I – Interest
P – Process I - Ideology.
By subjecting the problematic behaviour to further analysis through the lens of each of these seven factors, appropriately elucidated by the researchers as they inform their research by further academic sources or empirical data collected and analysed as part of the writing of the research report (policy that will be written into Law), the root causes of the social problem are revealed, the patterns of problematical behaviour are mapped, the identification of the entities whose behaviour is sought to be modified by the Law so that the social problem is at least alleviated if not resolved by the longer operation of the legislation are correctly embraced by the new legislation.
The proponents of the methodology assert that any social problem can be elucidated by one or more, if not all, of the seven ROCCIPI factors.5
ROCCIPI Elemental Factors
Rule: Briefly, for example, the problematic behaviour may be occurring because there is no Rule (no legislation) or the Rule is unsatisfactory (incoherent legislation). This motivates problematical behaviour not only by citizens but also by the Implementing Agency. It must be determined whether the Rule grants broad discretion that prevents effective implementation or permits arbitrary decisions. Vague or poorly drafted laws can lead to ineffective implementation and abuse.
Opportunity: Subsistence-only agriculture or minimised production of household economy products may simply be the result of the lack of infrastructure for transportation of products from the countryside to the urban domestic market or the international market. The farmer and small producers have no Opportunity to participate in the market (with the possibility of economic security enhanced in the rural areas). An informed policy based on research and a well-drafted law can alleviate this kind of social problem. As for Implementing Agencies, there must be Opportunity to enforce a law.
Capacity: The Capacity of Implementing Agencies may be compromised by resource or bureaucratic rules that render the Implementing Agency impotent to implement the law for which it has responsibility. The legislation stagnates and there can be only be a low expectation that the operation of the law will address the social problem.
Communication: Problematical behaviour can result from a lack of Communication of what the law says and how it affects citizens, organisations or institutions. Illegal or unlawful behaviour can not be expected to change if the persons upon whom legislation imposes liabilities or penalties have no awareness of a new law.
Such a consideration would be applicable, for example, to the problems of Language and the Law mentioned in Part 6. Implementing agencies such as the police force’s members may not have a sufficient grasp of the only language of publication of the Law and so also lack Capacity to enforce the law, or worse, make errors and render injustices. Many of these factors are interrelated and all require examination in the course of implementing this methodology.
Interest: Interest is a powerful motivator of problematical behaviour. Implementing agency interests often include increasing influence, acquiring resources, and protecting an administrative empire. The Interests of the Implementing Agency’s personnel may be status, avoiding work and risks and gaining reward.
Process: A government Process may be so complicated and convoluted as to be almost impossible to navigate by the ordinary citizen. There may be unwarranted wide discretions leading to arbitrary rather than rule-based decision making or even corruption to induce the favourable exercise of a discretion conferred too widely by the relevant legislation. Process may discourage citizens from exercising their rights.
5 See further Analyzing Implementing Agency Behavior Using the ROCCIPI Problem-Solving Methodology Hamilton, Mark Legislative Consulting Services, Washington DC Chapters 1 and 4.
Ideology: Religious, political, social or economic and even personal ideologies are often the motors of problematical behaviour, institutional dysfunctionality and consequential social problems.
Observation
The methodology and the theory are more fully elucidated in Legislative Drafting For Democratic Social Change by Seidman, Seidman and Abeysekere and numerous other sources including country studies. The products from the initial, rudimentary application of the methodology and theory as previously conducted in East Timor are stored in the author’s archives in English, Portuguese and Indonesian as empirical demonstrations.
Legislation and Good Governance
There in an intimate relationship between good governance, the law-making process and the quality of legislation. Good governance is “the manner in which power is exercised in the management of a country’s economic and social resources for development.”
“[It] identifies good governance with ‘good order’, not in the sense of maintaining the status quo by the force of the State by law and order but in the sense of having a system, based on abstract rules which are actually applied and on functioning institutions which ensure the rules’ application. Reflected in the concept of ‘the rule of law,’ this system of rules and institutions appears in different legal systems in different degrees of efficaciousness. Good governance, that is, effective government based on non-arbitrary decision-making, is central to a country’s successful development or transition to a market-oriented economy. 6
The methodology equips legislative drafters with the conceptual tools and specific techniques they need to draft laws likely to bring about the institutional transformation necessary for good governance.
Designed as a practical aid for practitioners in the developing and transitional worlds, this unique work demonstrates how, within constitutional and other limits, a drafter should structure a bill, provides instruction in drafting amendments and subordinate legislation, and describes the skills required to write the clear, unambiguous and readily-interpreted provisions required to achieve a bill’s policy objectives.
It provides a model for a research report that, based on facts and logic, will justify the bill’s detailed provisions and demonstrate that the responsible agency will implement them effectively. The final section focuses on drafting laws to facilitate government decision- making in accordance with the rule of law. In particular, it suggests devices for drafting defensively against corruption, thus providing the legislative environment essential for successful transition and development.”7
The learning and application of this methodology increases - in fact - it completes the Capacity to exercise the legislative power rationally. Capacity includes understanding bills,
6Assessing Legislation: A Manual for Legislators Ann Seidman, Robert Seidman Nalin Abeysekere Edited and revised by Mark Hamilton at page 5.
7Legislative Drafting for Democratic Social Change: A Manual for Drafters at page 45.
assessing those bills to determine whether they will advance the public interest, investigations to obtain information whether the provisions of the bill will serve the public interest, the supervision of the administration of the law to ensure law enforcement to advance the public interest and to communicate meaningfully with citizens about the kinds of laws to improve the quality of life. The University of San Francisco LDI was purposed to this Capacity of individual members of Parliament, the Parliamentary Commissions and civil society.
The academic study and articulation of the theory by East Timorese jurists, primarily, the intelligentsia of the Law Faculties and the Centre of Judicial Training, the Judges, law and justice CSO’s, the inculcation of the theory to students and practitioners of the law, the adoption of the theory as the standard by which all legislation is qualitatively assessed, the comprehension and learning of the practical implementation of the theory all begin with an academic narrative, an elucidation of the theory by East Timorese legal scholars, the writing of a text and a manual for legislative drafting suited to the jurisdiction. Empirical studies of the application of the methodology to social problems particular to the country are a necessary research area appropriate for East Timorese legal scholars and students.8 Please see further note 9 infra.
Introduction of legislative drafting methodology to the National Parliament of East Timor and civil society 2002 – 2004
The introduction of the theory of Legislative Drafting for Democratic Social Transformation occurred in East Timor 2002-2004 at the Commission level in the National Parliament and with civil society. The University of San Francisco School of Law implemented the Legislative Drafting Initiative under the auspices of The Asia Foundation’s Access to Justice Programme. The author of this paper was, in fact, the director of this project that was instigated at the request of the Parliament itself.9
Civil Society and Parliament
The methodology is premised upon a particular relationship between the legislature and society represented by citizen entities and social organisations, namely, what are commonly known as civil society organisations and stakeholders.
An integral component of the strategy of the methodology is the construction of a meaningful dialogue between the Legislature directly with the broader community to inform and
8 In the Legislative Drafting Initiative, the civil society research groups selected social problems that were then submitted to the relevant Parliamentary Commission including impunity for serious crimes committed during the Indonesian occupation, gambling, prostitution, land conflicts, education system and learning standards, pre- natal health care, environmental protection/forest preservation, customary land tenure systems, F-FDTL. The present social, economic and political circumstances of the country are known so it is otiose to identify more social problems. Poverty alone generates a multitude of complex complicated social problems.
9 The University of San Francisco’s initial program was based in Indonesia. With legislative drafting centers in operation, the university turned to the development of a curriculum that could be taught in Indonesian universities. The curriculum was developed by a team of legislative drafting center graduates and professors. The team began by developing a general outline for the course. The professors test taught the curriculum to volunteer students at Udayana University. After teaching each lesson, the professors reviewed evaluations completed by each student and participated in a critique group made up of other team members. Based on their experience teaching and the feedback received, each professor submitted a lesson for inclusion as a chapter in a textbook. Ibidem Note 5.
legitimise the legislative process and to further enhance participatory democracy at the very centre of the State.
The LDI involved the assembly of civil society group representatives into drafting teams who in the course of the learning the methodology that was taught by teams of international legal experts, produced policy and bills on selected social problems.
These Reports were then presented to the relevant Commissions of the National Parliament in a series of learning interventions conducted under the LDI with each Commission. The civil society research reports were subjected to examination and critique as the members of the Commissions also learnt the methodology in a series of educational interventions effected by the University of San Francisco School of Law in the National Parliament.
The author has the library of the research reports from the Legislative Drafting Initiative, some of which include rudimentary draft legislations that were produced by civil society groups practicing the learning and application of the methodology. There are versions in English, Portuguese and Indonesian. Selected copies of these reports will be made available to the Faculty upon request as demonstrations of the methodology that have already occurred in-country.
The process of the dissemination of the theory and practice of legislative drafting so that it becomes normative is not something that is within immediate timeframes. Rather, a longer effluxion of time is anticipated. That is the ultimate goal of this approach to deliberations on mechanisms that result in quality national law.
It will over the course of time become normative so that it is the unquestionable justification for interventions when jurists engage in the process of legislative drafting either as:
1. representatives of the people in the Parliament;
2. advisers to the Parliamentary office holders and Government Ministers and Departments;
3. those whose function is to write the draft laws (the skilled legal technicians who write the formulation of the actualised text of the draft law);
4. citizens and civil society collective organisations who are invited by the Parliament to participate in the drafting process at a substantial level, inputting into the identification and selection of social problems to be addressed by new law. CSO’s also bring to the legislative drafting process the voice of the community as well as meaningful public and stakeholder consultations on policy and draft laws.
Few legislators know how to assess a bill and rarely do they introduce legislation. They cannot inform their constituents about a law’s likely social impact; they cannot monitor and evaluate the causes of its negative impact; they cannot even know what questions to ask the proponents of a bill to determine whether its detailed provisions rest logically on the country’s unique circumstances.10
10 Assessing Legislation: A Manual for Legislators Ann Seidman, Robert Seidman Nalin Abeysekere at page 54.
This paper therefore posits an institutionalist legislative theory and methodology as a guide to discovering facts and logic relevant to assessing a bill’s general desirability and the likelihood that its detailed provisions will ensure its effective implementation.
This theory and methodology are strongly advocated by this author as the governing comprehensive means to the goal of the quality of national law.
“To induce behaviors more likely to solve that problem, the law’s detailed prescriptions logically must alter or eliminate those causes. To test these hypotheses, enquiry - questions about the facts that might falsify them. If the hypotheses prove consistent with the facts, and the solution logically addresses the causes those hypotheses reveal, the proposed law has some probability of ameliorating the social problem at which it aims.
Thus legislative theory guides the search for relevant facts. An hypothesis helps to limit the area of facts which researchers must discover…..That theory rests on the fact that all social problems reflect repetitive patterns of behaviour; that is, by definition, institutions. Only by re-channelling dysfunctional behaviours can law help resolve those problems.”11
Other Methodologies
Other methodologies implicitly reject the possibility of using theory as a guide in policy- making and legislation grounded on reason informed by experience.
Ends-Means
The ends-means methodology takes as given the policy-maker’s stated goals or objectives. Alternative legislative solutions for reaching those objectives are considered and the one that subjectively appears as the most socially cost-effective outcome is selected. This methodology adopts the positivist separation of facts and values. It denies the relevance of research about facts for determining a law’s substantive goals, leaving that critical decision to the policy-maker’s values. In effect, by assuming that no one can use facts and logic to query a decision about goals, ends-means inevitably leaves the law’s objectives to those who hold power. Ends-means tends to an authoritarian character.
Incrementalism
“Incrementalism teaches that, given the complexity and vicissitudes of life, no one can confidently predict a new policy’s or law’s consequences. Given the unknown dangers of wide-sweeping change, incrementalists recommend as the wisest course that lawmakers deal piecemeal and ad hoc with social problems by making the smallest changes possible.”12
“Muddling through’ becomes not the result of deliberate policy, but bumbling. Incrementalism has its uses, especially when insufficient research makes major changes risky. As a general strategy, however, it proves ineffective for making the significant institutional development generated by good policy and good law….”13
11 Ibid.
12 Assessing Legislation: A Manual for Legislators Ann Seidman, Robert Seidman Nalin Abeysekere at page 65
13 Ibid.
Both Alternative Models Rejected
Both of these models are rejected and this submission posits a legislative drafting theory as a grand theory of legislation in East Timor.
An Institutionalist Legislative Theory and Problem-Solving Methodology
To strengthen a country’s lawmaking processes, lawmakers need to assess whether the available facts and logic justify the provisions of transformatory bills. The deployment of an institutionalist legislative theory, including its problem-solving methodology, is a quintessential road to good national law, good governance and economic and social development.
The Legislature should enact a rule to require that the proponents of an important bill accompany it by a research report. “Adopting a problem-solving methodology, that report should present the kinds of evidence required to determine whether that bill rests on reason informed by experience. To assess the likelihood that, given the country’s unique circumstances, the bill’s prescriptions will likely induce the desired changed behaviors, the proponents of an important bill must demonstrate the evidence and rationale on which it rests.”14
The Rule of Law lies at the heart of good governance and development. Good laws alone do not guarantee development and good governance. Poor laws, however, do constitute a cause of their defeat. At every stage in the lawmaking process, legislators must assume primary ethical and professional responsibility for enacting bills that are likely to prove to be effectively implemented and that facilitate good governance and development.15
Part 2 Looking Back: Revision of Existing Legislation that falls short of the juristic standards of the methodology
Part 1 looked forward and examined the question of reform by creation, propagation and implementation of the intellectual framework governing the enactment of new laws so that the quality of national law is measurable by the standards set out in the theory. This Part 2 looks backwards at the question of revising, reforming and redrafting existing problematical legislation based upon the methodology.
As noted at the introduction to Part 1, the applicable law, Indonesian law in force in the national territory of East Timor as at 25 October 1999, is the basic structure and content of the legal system of East Timor. Significant amendments to the now previously applied Indonesian law have been effected by the Legislatures and Governments since the restoration of independence, such as the criminal and civil codes, the land law, systems of administration, governance structures, and so forth. This national law-making has included transplantation of foreign laws.
14 Ibid.
15 Ibid.
Towards the goal of improved quality national law, it is necessary to initiate a permanent review process that re-examines laws in force – customary, transplanted and independence laws - and makes recommendations for reform by further legislation along with revision of associated policy.
General Categories of Possible Problematical Laws in Force
Although this study does not purport to make any critique of any particular existing Parliamentary or Government laws in force, there may be identified general categories that assist in the prioritisation of reformation, redrafting or repeal.
So, for example, there may be provisions that open doors to corruption of the State apparatus and that are therefore anathema to good governance; legislative discretions that permit arbitrary decision-making or a lack of accountability or natural justice.
Laws that fail constitutional dictates are highly problematical and are a priority of the reform process.
Laws that close off or prejudice judicial review of executive decisions and actions are prima facie anti-democratic.
Laws that tend away from democracy and towards Statism require review.
Laws that lack the legitimacy of prior democratic participation may also be identified were a systematic particularised study to be done.
Finally, laws that undermine the Judiciary or that are inconsistent with the jurisprudence of the criminal law must be closely scrutinised.
It is not the assertion of this study that the existing body of legislation enacted by the Parliament and the Government is fraught with such difficulties but, in any reform process, these are the kinds of laws that would attract the attention of a Law Reform Commission.
The Problematical Applicable Law
The vast body of problematical transplanted law of Indonesia that is the applicable law is also full of unconstitutionality and is highly undemocratic and inconsistent with the Constitution.
Constitution Article 165 (Previous Law) Laws and regulations in force in East Timor shall continue to be applicable to all matters except to the extent that they are inconsistent with the Constitution or the principles contained therein.
Considering that the legislation that constituted the majority of the Indonesian legal system during the period 1965-1998 was enacted under the authoritarian completely corrupted Statist regime, or under the influence of Communist ideology during the Sukarno government16,
16 The author would like to highlight one such piece of Indonesian legislation, the Basic Land Law of 1960. Although near total transformation of the legislative framework governing land affairs in East Timor has been effected, this example is still demonstrative of the kinds of fundamental problems in the Indonesian legislation. In a 1999 study, the author found the land law to construct a State-controlled system of land ownership full of doors to corruption and arbitrary decision making, unjust extinction of rights, unstable tenures, great harm to
anyone who approaches the Indonesian legal system may reasonably expect a high degree of unnecessary and perplexing complexity, inconsistency, confusion, lack of precision in legislative drafting, indeed, highly problematic legislation.
Many significant reformations of the applicable law have been effected by the Parliament and the Government to render a meaningful and operational legal system right down to the Traffic Code17 but that does not preclude their revision by further reform.
Law Reform Commission General Observations
In most legal systems, there is a continuous process of revision, redrafting, repeal, amendment, expiry and the creation of a new law to replace existing legislation whose implementation and operation have not been evaluated as proficient law or which have become archaic and in need of rejuvenation to accommodate problems that have emerged in the implementation of the law or to render long-established legislation meaningful to modern times; in short, updating or erasing it. The responsibility for initiation of that process is assigned to a specially constituted independent statutory agency commonly known as Law Reform Commission.
Role and Function of Law Reform Commission
A Law Reform Commission is managed by prominent academic lawyers, former judicial officers and practitioners of the law, who provide expert law reform advice to Government on matters referred to it by the chief Government legal officer or through other mechanisms provided for in any constituting legislation for the Law Reform Commission.
Typically, the Law Reform Commission produces and submits reports which analyse the issues identified in the reference, and makes recommendations for legislative reform.18
The objective of the law reform process includes the very same objectives of this present revision by the Faculty of Law that is purposed to develop the quality of the national law of East Timor. Coincidentally, the general purposes of an LRC include:
Improvement and modernisation of the law;
Simplification and consolidation the law;
Removal of inefficiencies and defects in the law;
Repeal of laws that are unnecessary and obsolete; and
customary land tenure systems and many other problematical provisions. Typically, early Indonesian legislation appears more as a policy statement than technical laws let alone laws based on democratic ideas. The full study by the author is Indonesian Land Administration Project Final Report on the Review of Law No 5 of 1960 by Wright, W at https://www.scribd.com/document/16626318/Review-of-the-Basic-Agrarian-Law-of-1960- Indonesia.
17 The traffic code is an example of a transplanted law that demonstrates the problem of transplanted laws. The original draft of the foreign investment law was also an exercise in transplantation.
18 Author notes the East Timor Law Reform Commission’s Six-Monthly Report July-Dec 2016 “To Reform
Legislation and Justice Sector in Timor-Leste” as a most valuable initiative by the Law Reform Commission.
Improved access to justice.
A Law Reform Commission:
Identifies key issues with the law and areas for reform;
Conducts intensive research including academic literature reviews and empirical research where required; and
Implements community-wide engagement in the process through public consultations that are central to legislative drafting and reform of existing problematical laws.
Law reform is a consultative and collaborative process. A democratic law reform process compels engagement and consultation with stakeholders and legal and industry experts to participate in a dialogue on ideas for reform.
Anyone can make a submission to an LRC thus expanding participatory democracy as well as improving legal products.
The East Timor Law Reform Commission
The East Timor Law Reform Commission was established by Government Resolution on 26 August, 2015, to update and develop legislation in priority areas, including the justice sector.
A completely independent, well-funded and expertise-dominated Law Reform Commission is an indispensable precondition to its significance as the central pivot of law reform empowered with the mission to ensure the quality of national law by the review of existing laws:
a. Customary law;
b. Inherited and transplanted law;
c. Post-national liberation law-making either by the United Nations or the East Timor Transitional Administration; or
d. Absolute exercises in sovereignty through law creation since the restoration of independence by the Parliament and the Government.
As for the present circumstances of the Law Reform Commission, it exists by virtue of a Government Resolution. Legislation creating a law reform commission in the form of a Government law-making instrument is not a sufficient legislative instrument to constitute an LRC. It is a first positive step towards a greatly strengthened law reform commission necessary to perform the ordinary functions of a law reform commission. Such an institution requires constitution by a law of the Parliament. It requires a permanency entrenched by legislation. It requires adequate resource allocation and be comprised of the learned legal scholars of East Timor.
A reinvigorated, expanded, well-funded and pro-active LRC is an indispensable prerequisite to the improvement of the quality of national law in any jurisdiction.
Part 3 The Judiciary and the Completion of the Court Structure
Every legal system must have at its apex a supreme judicial organ of State tasked with correcting miscarriages of justice at all lower level courts, concluding civil claims and disputes or criminality in a final authoritative manner from which there is no further judicial appeal and which also carries the high duty of the interpretation of the Constitution and the validity of legislation from the Parliament or the Government.
This court of final appeal and defender of the Constitution is a necessary component of the justice system that may only be constructed upon qualitatively sound law and which may declare the substantive validity or otherwise of any particular law.
The Judiciary has not been constituted as mandated by the Constitution. The court structure remains incomplete, without a capstone that the Constitution anticipates.
For example, Article 124 (Supreme Court of Justice) provides that:
1. The Supreme Court of Justice is the highest court of law and the guarantor of a uniform enforcement of the law, and has jurisdiction throughout the national territory.
2. It is also incumbent on the Supreme Court of Justice to administer justice on matters of legal, constitutional and electoral nature.
And further:
Section 126 (Electoral and Constitutional Competence)
1. It is incumbent upon the Supreme Court of Justice, on legal and constitutional matters:
a) To review and declare the unconstitutionality and illegality of normative and legislative acts by the organs of the State;
b) To provide an anticipatory verification of the legality and constitutionality of the statutes and referenda;
c) To verify cases of unconstitutionality by omission;
d) To rule, as a venue of appeal, on the suppression of norms considered unconstitutional by the courts of first instance;
e) To verify the legality regarding the establishment of political parties and their coalitions and order their registration or dissolution, in accordance with the Constitution and the law;
f) To exercise all other competencies provided for by the Constitution or the law.
It is not necessary for present purposes to conduct an in-depth analysis of this juridical problem here other than to say that as long as the constitutionally-mandated court system does not exist, there are chasms in the Judiciary that should not now exist nearly two decades since liberation.
The matters assigned to the special jurisdiction of the Supreme Court of Justice go directly to the question of the integrity and legitimacy of laws and ultimately of good governance, even in the extreme case, the security of the civil peace.
The Supreme Court of Justice and the other courts mandated in the Constitution must be established. The judicial system must be complete and fully operational.
1. After the Supreme Court of Justice starts its functions and before the establishment of courts as laid down in Section 129, the respective competence shall be exercised by the Supreme Court of Justice and other courts of justice.
2. Until such a time as the Supreme Court of Justice is established and starts its functions all powers conferred to it by the Constitution shall be exercised by the highest judicial instance of the judicial organisation existing in East Timor.19
This task is presently assigned to the Court of Appeal. A separate Supreme Court of Justice is mandated by the Constitution for good reason. A complex and sophisticated legal structure must be enacted in legislation to found the organic structure of the Supreme Court of Justice as the guardian and defender of the Constitution and the ultimate judicial authority on all questions of law arising throughout the entire national territory.
The omission to complete the Judiciary with the Supreme Court of Justice duly established poses questions for the principles of the separation of powers that contemplates a completely functional, thoroughly supported and effective judiciary. An incomplete Judiciary means that the judicial organs of sovereignty are not as institutionally strong as they should be. This creates a disequilibrium between the Judiciary and the Executive and has implications for the status of the Courts as well as the separation of powers so fundamental in a democratic Constitution.
The Status of the Courts
The institutions of constitutional democracy have essentially been established, subject to the observations above about the Supreme Court of Justice that has not yet been constituted.
The power of the State in a democracy is separated between the Executive, the Legislature and the Judiciary. All three of these organs of State must be in equilibrium.
The Parliament is a strong institution of law-making and government program reaffirmation as the Constitution provides. The President’s office has been well established and is functional as an institution within the democratic framework upon which the Constitution and the Polity are created. The Government executive administration is well established and functional.
The same may not be said unconditionally about the Judiciary, particularly in view of the absence of the Supreme Court of Justice. There is insufficient funding and resourcing of the judicial sector. There have been criminal assaults on the Judges. A strong judiciary including a strong physical institutional presence is necessary to restore equilibrium to the balance of the judicial, executive and legislative organs of the State and to stabilise and elevate the institutional authority of the Courts.
19 Constitution Section 164 (Transitional competence of the Supreme Court of Justice)
Part 4 Customary Law
Decades after independence, a major divide exists between the indigenous traditional sphere in rural areas and the modern sphere that is limited to urban regions. Traditional sources of authority and social regulation compete with formal state actors whose work is limited to the legal arenas of formal lawmaking, administration and the court system.
The Constitution provides:
Article 16 (Universality and Equality)
1. All citizens are equal before the law, shall exercise the same rights and shall be subject to the same duties.
2. No one shall be discriminated against on grounds of colour, race, marital status, gender, ethnical origin, language, social or economic status, political or ideological convictions, religion, education and physical or mental condition.
Equality before the law, all citizens subject to the same universal law of the jurisdiction, is fundamental.
A central question arising from consideration of the development of the quality of national law is customary law. The norms and practices of customary legal systems vary from one place to another within the national territory. Different rules apply to different citizens resulting from pluralism; multiple customary systems based on geographically varying location and rules. These features are a cause of great concern to modern democratic jurists.
Moreover, these customary systems are not objective, contain no provision for proper defence, tend to gender discrimination, the denial of rights, invoke the supernatural rather than reason to explain and rectify violations and are particularly objectionable in the case of the equivalent of criminal liability and the imposition of penalty.
The Constitution puts the status of the norms and customs of East Timor subject to the Constitution and any legislative regulation of customary law.
Article 2 (Sovereignty and constitutionality)
…..
…..
3. The validity of the laws and other actions of the State and local Government depends upon their compliance with the Constitution.
4. The State shall recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing specifically with customary law.
The following part of this study’s observations on customary law and the relationship with the notion of quality law as defined in this study as irrevocably rooted in the Constitution, constitutionality and the democratic dictatorship of the majority that is expressed through the electoral processes and laws, the representation of the people by duly elected Members of Parliament, as well as the supremacy of Parliament, draws heavily upon a paper entitled “On the Occasion of the International Conference on Traditional Conflict Resolution & Traditional Justice in Timor-Leste” held in Dili, 27 June 2003.
The author adopts the analysis set out below because it accurately and thoroughly narrates the author’s view – or, rather, the contemporary positivist view - on the critical issues posed for the quality of national law by customary law. It identifies the sources of the antagonism between customary law-related institutions and the formal legal system composed by the Parliament or inherited. It highlights critical problems with customary law from the perspective of constitutionality and democracy, and universal legal rights, which, if not sanctified in legislation, are vulnerable to systemic violation and cause injustice to become a social norm, always posing a challenge to the contemporary State and the positive law.
“The first laws in human civilisation were adopted based on norms regulating social interaction between individuals groups or clans and they evolved with time and with the development of societies. The norms or laws respond, or to act as a guideline, directive or as punishment to emerging practices or to attitudes which collided with common sense or were offensive to the spirit of justice or, still, clashed with moral standards in a society .
In less developed societies, laws are sets of norms that guide behaviour and acts of society; they are unwritten and based on customs and traditions. Contemporary social laws - legislation - enacted by the State are much more complex and their evolution also occurred according to individual assimilation of values of universal dimension. Whereas contemporary written laws warrant a permanent and global concept of values, traditional laws lack resolve in their expression because they are unwritten and may change according to the narrator's interpretation, although still maintaining a dynamic of its own.
Customary laws represent the stage of evolution of a society based on feudal relationships both in social and supernatural aspects; both aspects are combined with the political and economic ones and add to another which refers to castes as the lower echelons of society, slaves and those who practice witchcraft20 and whom are usually denied rights.
It is within this context that the question of traditional justice must be considered by contemporary jurists working within a modern democratic order. The relationship between customary law and international human rights standards continues to be contentious.
Traditional justice is usually enforced by traditional chiefs acting as the authority, by the elders whose experiences prevail and by the men of law. The lia-nain were the custodians of the lulik or have some link to it; this derives from the need to link that which is real to that which is supernatural in order to accord moral credibility to whichever solution is adopted.
This combination of factors ordinarily brings grave implications in the shaping of justice.
One factor arises from the status held by the agents of justice and the other from the extremely powerful influence resulting from the interpretation of the facts, usually explained by resorting to the supernatural and often denying the realistic content of the values of justice or overriding reality itself.
If the disputing parties are distant from the agents of justice, one may state 'a priori' that the dispute is resolved more or less impartially. I say 'more or less' because as with contemporary
20 Murder and witchcraft in Timor-Leste Wright, W at East Timor Law and Justice Bulletin 2012 http://www.easttimorlawandjusticebulletin.com/2012/12/murder-and-witchcraft-in-timor-leste.html Accessed 8
October 2018.
justice, 'bonuses' are a reality and the balance of justice may weigh in favour of those who pay more. If either the plaintiff or the accused had a previous problem with any agent of justice then one may also say that a priori there is no guarantee of the impartiality of justice and the supernatural will be brought in to legitimise the solution.
There are no defence lawyers involved….There is no common pattern in the sentencing or punishment; because there were no prisons.
From a contemporary perspective, traditional justice is exceedingly problematical. It is absolutely necessary to place modern laws within a context to counterbalance the confines of the interpretation of values by traditional justice, so as to clearly define the limits to which traditional justice must comply with and thus avoid trampling on the spirit of the law of a country or stepping on human rights.
Only with a judicial system at the service of the communities, will disagreements, quarrels, contradictions and conflicts be referred to those legitimately empowered to resolve them and, thus, avoid excesses and taking justice into one's own hands; this would be a clear warning to the State of the lack of credibility in the judicial system or that it is not accessible on a daily basis and is too slow, contaminated by excessive bureaucracy and inefficiency and further compromised by insufficient resource allocation to facilitate the justice process in the formal courts.”21
The consideration of traditional justice, its description and observation on its operations, is critical to the way in which the judicial system is shaped, for it will avoid the enormous gap, which is often difficult to bridge, between drafting the law and the traditional perception of the majority of the population.
It is of the utmost importance that traditional justice fit the new national democratic order. In particular, the entire system is unacceptable in terms of democratic national law where it violates the principles of the clean administration of justice unaffected by external influences, partiality, subjective interpretation or resort to supernaturalism, is inconsistent with modern human rights and dignity of all as well as equality of all citizens before a universal law as administered by a constitutionally-empowered formal Court; by impartial judges deciding cases in accordance with the applicable law and without fear or favour.
The positive State law must elucidate, clarify, supervise and redefine customary law. The clash of legal systems – the positive and customary – can not stand in a coherent legal
system. The State may not sit on its hands and permit traditional justice systems to perpetrate injustice contrary to the rule of law and modern standards of human rights and dignity. The Constitution, particularly those cited provisions, must be regarded and respected at every level of the law.
The contemporary democratic positivist State’s attitude to customary law is demonstrated in the federal jurisdiction of Australia. The Crimes Amendment (Bail and Sentencing) Act 2006 which introduced section 16A(2A) to the Crimes Act 1914 (Cth) qualifying the matters to which the
21 On the occasion of the International Conference on Traditional Conflict Resolution & Traditional Justice in Timor-Leste held in Dili, 27 June 2003 Delivered by the then President Gusmao. Original citation 2005 ETLJ 3 archived at https://easttimorlawjournal.blogspot.com/2012/05/on-occasion-of-international-conference.html Accessed 2 October 2018
court must have regard when passing sentence for offences against Commonwealth law. The Court must not take into account any form of customary law or cultural practice as a reason for “excusing, justifying, authorising, requiring or lessening” or “aggravating” the seriousness of the criminal behaviour.”
Part 5 Legal Education and International Technical Assistance Education
Legislative Drafting for Democratic Change and the ROCCIPI problem-solving methodology are most appropriately taught at tertiary level; to law students, to civil society, the Members of Parliament, to responsible government officials and legislative drafters. It is a theory that is a suitable inclusion in a syllabus at the University level and any continuing legal education programme.
Knowledge of this theory and the methodology will be propagated to the next generation of graduates, legal practitioners and scholars, who will in due course administer the apparatus of the State and become Legislators or further teach the Law.
Institutions of Higher Legal Learning Judicial Training Centre
This institution is both a crucial role occupant and implementing agency in the context of embedding the theory and methodology in legal learning.
Faculties of Law
The role of the Faculties of Law at the Universities is self-evident. See also Note 9 supra.
Technical Assistance - Foreign Legal Experts
The institutional theory of legislative drafting for democratic social change and the practical application of the problem-solving formula were developed at Boston University School of Law by Professors Seidman, Seidman and Abeysekere. The United States is the centre of the intellectual elucidation of the theory and the original source of this thought paradigm. It has been successfully taught in other numerous developing countries. The text has been translated into at least 10 languages, including Indonesian.
During the implementation of the Legislative Drafting Initiative described in Part 1 in the National Parliament of East Timor and with civil society which sought to transfer knowledge and practical skills to Members of Parliament and civil society, foreign legal experts were essential as lecturers and tutors as there was no awareness of this particular scholarly approach to drafting legislation nor any existing expertise in civil society or the formal education system.
The LDI was a transnational cooperation between law faculties. The lecturers and tutors, all lawyers highly expert and experienced in this field of knowledge and practice, were drawn from the University of San Francisco School of Law and from Udayana University Faculty of Law. Australian lawyers were also involved in the design and implementation of the LDI. As
noted earlier, the author was the project director of the LDI. The LDI is a reference precedent model for future interventions to guarantee the quality of national law through the advancement and application of this theory and methodology.
Future multi-institutional cross-sector cooperation is a prerequisite to a successful transformation towards the penetration of the democratic legislative drafting process into the law-making operations of the State.
International Technical Legislative Drafting Theory and Problem-Solving Methodology Assistance
International educational assistance is most likely necessary to develop the course and teach it in conjunction with the legal scholars at the Faculties with a view to the Faculties acquiring the capacity to teach the course.
Technical advisers in the Parliament in the existing legislative process who are tasked with the actual drafting of legislation in the current circumstances in East Timor might, in the first instance, engage in continuing legal education and practice in the theory and methodology provided by international technical legal assistance.
The participation of foreign lawyers may be problematical if they or their national colleagues are unable to transcend epistemological self-righteousness. Given the parochialism prevalent among some lawyers, when they are called upon to advise foreign governments, they almost invariably offer their own laws as solutions to every problem they encounter.
Despite these problems, the contribution that international legal experts can make is invaluable. An area where they do make an important contribution is in the diagnosis and assessment of the legal and political systems of recipient countries. To fully to take advantage of their skills they should form part of teams with local lawyers who should always have the ultimate responsibility for the drafting process. Foreign lawyers never lead the team.22
Apart from the longer-term educational interventions outlined in this paper at the Faculties of Law, a shorter-term recommendation is a re-implementation of the Legislative Drafting Methodology; the deployment of international advisers to assist to educate the local technical drafters in the National Parliament as well as at other critical points of reference; namely, the Government and its agencies responsible for legislation.
The Ministry of Justice and The Ministry of Legislative Reform and Parliamentary Affairs
The VIII Constitutional Government includes both the Minister of Justice and the Minister of Legislative Reform and Parliamentary Affairs whose portfolios include numerous central functions in respect of the legislative drafting and law-making processes.
Both of these Ministries are portals to the propagation of the theory as a more immediate measure than longer term objectives at tertiary level education. Both are indispensable role occupants and implementing agencies in terms of the theory and only a common
22 Comprehensive Legal and Judicial Development: Toward an Agenda for a Just and Equitable Society in the 21st Century Van Puymbroeck, R The World Bank 2000. pp 386-388
comprehension and cooperation between the law intelligentsia, international legal technical assistance advisers, the Government and the Parliament would see the theory and methodology become the model against which all legislation is measured and which will eventually appear as a reasonable, practical, just and democratic legislative process to adopt as a new paradigm for law creation.
The ultimate goal is to introduce and enliven the theory into the juridical system through the:
The Sovereign Organs of the State - the Parliament and the Government;
The Higher Education system – the Faculties of Law & The Judicial Training Centre
The Society through community legal education programs effected by civil society law and justice organisations; and
The Private Legal Profession.
The Legal Profession
The legal profession is the defender of citizens’ legal rights.23 The legal profession is a central Role Occupant in the legislative process. They are the practitioners of the Law. Continuing legal education programs for private lawyers might include instruction on the theory and methodology. The organised lawyers are always a necessary consultative entity on significant new legislation and to assist the Government in the formulation of new legal policy and legislation.
Part 6 Language and the Law
The rule of law dictates that the law be knowable by all. The reasons are patent and do not need detailed articulation here. As a general observation, the omission to publish laws in all relevant languages, to socialise the law, particularly new laws to the majority of the population, so that it is universally comprehended and accessible, is challenging to the rule of law.
Implications for the Rule of Law
There are two aspects of this problem: First is that there is no complete database of all legislative instruments enacted since independence in official Tetum. Many laws and rules are published only in Portuguese. It has grave implications for citizens, implementing agencies and, more critically, the rule of law. The rule of law and the Constitution24 compel
23 Constitution Article 135 (Lawyers) 1. Legal and judicial aid is of social interest, and lawyers and defenders shall be governed by this principle. 2. The primary role of lawyers and defenders is to contribute to the good administration of justice and the safeguard of the rights and legitimate interests of the citizens.
24 Constitution Article 13 Tetum and Portuguese shall be the official languages in the Democratic Republic of East Timor.
the Executive to comply with the most critical language provisions in the Law that posit both Tetum and Portuguese as official languages.25
Lost in Translation26
Second, there is a multitude of local languages whose speakers know neither Tetum nor Portuguese but only their own language. This second aspect emerges critically in the course of the administration of justice by the Courts and increases the risk of miscarriages of justice unless unquestionably qualified interpreters are deployed and all the necessary support made by the responsible implementing agency.
Even then, translations and interpretations of the evidentiary and legal language are not always exactly the same in meaning as the original so there will always be nuances of meaning that are lost in translation. As a bilingual lawyer, the author’s own experience verifies these observations.27
Observation
It is axiomatic that since both Tetum and Portuguese are the official languages, all legislative instruments must be published in both languages in the Jornal da Republica and widely publicised to the community by the media and community legal education programs implemented by civil society organisations and lawyers’ associations throughout the entire national territory.
Highly expert qualified translators and interpreters are an indispensable prerequisite for the fair administration of justice.28 Linguistic expert evidence should be adduced where there is a lack of clarity and proceedings suspended pending resolution of any obscurity in language.
Part 7 The Constitution and Constitutional Reform
There are fundamental questions arising from the general consideration of the Constitution from a democratic jurisprudential view.
The first is that the text of the Constitution was never submitted to the people.
Secondly, recent circumstances have focused attention on certain provisions of the Constitution, particularly Article 106.
25 East Timor : Language and The Law Original Citation: 2009 ETLJ 9 East Timor : Language and The Law at https://easttimorlawjournal.blogspot.com/2012/05/east-timor-language-and-law.html. Accessed 2 October
2018; See also Progress and challenges relating to legislative developments in Timor-Leste JSMP Submission to the National Parliament 2018. Paragraph 5.
26 Timor-Leste Constitution Article 106: Lost in Translation at http://www.easttimorlawandjusticebulletin.com/2018/05/constitution-article-106-lost-in.html Accessed 2
October 2018
27 Errors in translation are extremely problematical, particularly in legal language. For example, Article 106(1) of the English translation of the Constitution published on the government web site reads: “1. The Prime Minister shall be designated by the political party or alliance of political parties with parliamentary majority” whereas the correct translation is “The Prime Minister is nominated by the most voted party or by the alliance of parties with parliamentary majority”. [emphasis added]
The Constitution provides for its own revision.
Section 154 (Initiative and time of revision)
1. It is incumbent upon Members of Parliament and the Parliamentary Groups to initiate constitutional revision.
2. The National Parliament may revise the Constitution after six years have elapsed since the last date on which a law revising the Constitution was published.
3. The period of six years for the first constitutional review shall commence on the day the present Constitution enters into force.
4. The National Parliament, regardless of any timeframe, may take on powers to revise the Constitution by a majority of four-fifths of the Members of Parliament in full exercise of their functions.
Constitutional reform could be referred to the Law Reform Commission for initial study.
Summary
In the consideration of the matter of the development of the quality of national law, this study concludes and seeks to emphasise and explain that:
1. An institutional intellectual theory known as Legislative Drafting for Democratic Social Change is a guarantor of the quality of national law moving forward into the future;
2. The propagation of the theory and the problem-solving methodology that it formulates is a necessary prerequisite to quality national law;
3. A properly constituted and functional Law Reform Commission is a prerequisite to reviewing the quality of the existing national law and the continuous process of legal reformation;
4. The Judicial organs of State must be constituted in accordance with the Constitution and strengthened institutionally;
5. The conflict between customary law and positive law must be resolved;
6. The rule of law dictates that the law be known or knowable to all citizens in a language in which they are fluent.
7. Constitutional reform in accordance with its own provisions, recalling also the referendum provisions of the Constitution, remain an option for reformation should any of its provisions result in institutional instability and compromise good governance.
Bibliography & Sources
Constitution of the Democratic Republic of East Timor English translation
Constituição da República Democrática de Timor-Leste Portuguese text
Legislative Drafting for Democratic Social Change: A Manual for Drafters Kluwer Law International ISBN 9789041197931
Assessing Legislation – A Manual for Legislators Ann Seidman, Robert Seidman, and Nalin Abeysekere February, 2003 Boston, Massachusetts
Legislative Drafting for Democratic Social Change Ann Seidman, Robert B. Seidman, and Nalin Abeysekere, (Indonesian version, 2d ed.), ELIPS II National Library, Jakarta, 2002
Assessing Legislation: A Manual for Legislators Ann Seidman, Robert Seidman Nalin Abeysekere Edited and revised by Mark Hamilton
Legislative Drafting Manual Ed Glenn Sarka and Mark Hamilton University of San Francisco School of Law Center for Law & Global Justice September 2003
An Exposition of Legislative Quality and its Relevance for Effective Development Victoria E. Aitken July 2013 Rule of Law Development Advisor, PROLAW
Comprehensive Legal and Judicial Development: Toward an Agenda for a Just and Equitable Society in the 21st Century Van Puymbroeck, R The World Bank 2000
Legal Reform in Developing and Transition Countries - Making Haste Slowly J. Faundez University of Warwick
Making Development Work: Legislative Reform for Institutional Transformation and Good Governance A. Seidman, R. B. Seidman and T. W. Walde (eds) (1999) Leiden University Press ISBN 978 90 8728 046 8
Lawmaking for Development Explorations into the Theory and Practice of International Legislative Projects Edited by J. Arnscheidt B. van Rooij and J.M. Otto
Crimes Act 1914 (Cth) Australia
Customary Law The Commonwealth Intervention Chief Justice Martin Northern Territory JCA Colloquium 5 October 2007
Indonesian Land Administration Project Final Report on the Review of Law No 5 of 1960
1999 Wright, W.
Timor-Leste Constitution Article 106: Lost in Translation 2018 Wright, W
East Timor : Language and The Law 2004 Wright , W
East Timor Law and Justice Bulletin East Timor Law Journal
Progress and challenges relating to legislative developments in Timor-Leste JSMP Submission to the National Parliament 2018
Penyelesiaian Masalah dan Pedoman-Pedoman Praktis Untuk Solusi-Solusi Legislatif bagi Masalah-Masalah Sosial (Denpasar Indonesia 2003, Dili Timor-Leste, 2005) Unpublished
Murder and witchcraft in Timor-Leste Wright, W East Timor Law and Justice Bulletin 2012
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