Law and Language in Timor-Leste: Bridging the Divide

Abstract

The complex historical background of Timor-Leste resulted in the existence of two distinct legal systems--the formal legal system and the traditional system--that operate in parallel but make use of different languages (official and traditional). While Tetum and Portuguese are both official languages, there is a substantial gap between their official status and the daily practice of courts. Because many citizens are not fluent in the official languages, their access to courts is seriously hampered. Furthermore, many young lawyers are not fluent in the official languages and are thus prevented from giving their contribution to the consolidation of the judiciary system. The current situation can only be addressed through a variety of measures targeted at promoting the knowledge of the two official languages by citizens and practitioners. The article is divided into three parts. The first provides a brief overview of the legal system of Timor-Leste. As law and language are deeply associated, the second part moves on to discuss the multilingual environment of the country, and explains why the languages of the courts and the languages of the people frequently do not coincide. The final part offers some suggestions to improve the language ability of citizens and judicial operators. The Legal System of Timor-Leste The legal system of Timor-Leste (1) is the result of a lengthy sequence of historical events that determined its contours decisively and will probably continue to influence its evolution in the coming decades. Timor-Leste underwent several centuries of colonization at the hands of the Portuguese (until 1975) and almost a quarter of a century of occupation by Indonesia (between 1975 and 1999). Yet, during the periods of colonization and occupation, foreign formal legal systems did not exert absolute influence over the territory. (2) The Portuguese were mainly concerned with trade, the prevention of large-scale conflict and the collection of taxes. (3) Colonial power was exercised through a system of indirect colonial rule which involved the conferral of military power to local chiefs loyal to the Portuguese who were in charge of maintaining law and order. Few laws were enacted specifically for the colony. (4) On 28 November 1975, the President of FRETILIN (Revolutionary Front for an Independent East Timor--Frente Revolucionaria de Timor Leste Independente) unilaterally declared independence. However, the country was invaded and occupied by Indonesian forces nine days later. The territory was incorporated into Indonesia as the country's 27th province in July 1976. The imposition of the Indonesian legal system during the occupation had a significant impact on East Timorese society. Laws adopted by the Indonesian legislative bodies were extended to the territory, with only civil disputes being left to be resolved at the local level. (5) On 30 August 1999, in a popular referendum supervised by the United Nations (UN), 78.5 per cent of voters rejected Indonesia's offer of broad autonomy in favour of total independence. The United Nations Transitional Administration in East Timor (UNTAET) was established in October the same year to administer the territory, exercise legislative and executive authority during the transition period, and support capacity-building for self-government. UNTAET was endowed with overall responsibility for the administration of the country, and empowered to exercise all legislative and executive authority, including the administration of justice. (6) Such a wide-encompassing mandate was based on the Security Council's perception that Timor-Leste was not ready for self-administration. One of the most pressing tasks faced by the transitional administration was to rebuild state institutions, particularly the legal system and judiciary. The first measure in this regard took place in late November 1999 when UNTAET passed Regulation no. 1999/1. (7) Pursuant to section 3, until replaced by UNTAET regulations or subsequent legislation of democratically established institutions of Timor-Leste, the laws applied in the country prior to 25 October 1999 (the date of UNTAET's establishment) would apply insofar as they did not conflict with the internationally recognized human rights standards, the fulfilment of the mandate given to UNTAET or any other regulation and directive issued by the Transitional Administrator. …