Law and language in Timor-Leste: bridging the divide.

• Author: Simoes, Fernando Dias

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. (8) The reason for this decision was twofold: first, to prevent a legal vacuum during the period of transitional administration, and second, to ensure that local lawyers, most of whom were trained in universities in Indonesia, Australia or Portugal, would not be forced to work within a completely new legal system. (9) Consequently, the Indonesian Civil Law system was the main tool of public authority during the period that preceded Timor-Leste's independence. (10) This decision was contested by some who opposed the idea of leaving untouched the legal apparatus that had been in place during the Indonesian occupation and was therefore seen as an essential part of the unlawful invasion of the territory. (11) The legal system during the period of transitional administration of Timor-Leste was hard to navigate. It combined international and local governing bodies and was based on different sources of law, namely Indonesian laws and UNTAET regulations. As had happened during the periods of colonization and occupation, the formal legal system did not stretch uniformly throughout the territory, and judicial courts were only available in the major cities.

On 20 May 2002, Timor-Leste became an independent state. Also on that day, UNTAET was succeeded by the United Nations Mission of Support in East Timor (UNMISET) to provide assistance to core administrative structures critical to the political stability of the country. According to article 165 of the Constitution of the Republic of Timor-Leste, of 22 March 2002, laws and regulations in force in the country shall continue to be applicable to all matters except to the extent that they are inconsistent with the Constitution or the principles contained therein. Pursuant to Law no. 10/2003, of 10 December, the applicable Indonesian law must have been in force prior to 25 October 1999. UNTAET regulations and Indonesian law apply as long as they have not been repealed. Following independence, the legal system of Timor-Leste underwent significant changes, with several fundamental pieces of legislation being enacted, including: the Criminal Procedure Code (Decree-Law no. 13/2005, of 1 December); the Civil Procedure Code (Decree-Law no. 1/2006, of 21 February); the Criminal Code (Decree-Law no. 19/2009, of 8 April), and the Civil Code (Law no. 10/2011, of 14 September). The influence of the Portuguese legal tradition is quite pronounced, especially as regards the Civil Code. In late 2012, the UN Security Council voted to end its peacekeeping mission in Timor-Leste.

During the Portuguese and Indonesian occupations, "customary" or "traditional" rules coexisted with the formal legal system. (12) Nowadays, paragraph 4 of article 2 of the Constitution of the Republic of Timor-Leste acknowledges the importance of local norms and customs: "The State shall recognise and value the norms and customs of Timor-Leste that are not contrary to the Constitution and to any legislation dealing specifically with customary law." The majority of the country's population lives in small communities, frequently in remote villages on the top of barely accessible mountains. The lack of proper means of communication makes it almost impossible to have access to judicial courts. The farther citizens live from the major cities, namely the capital Dili, the more local norms and customs are important for the resolution of their ordinary grievances. With courts geographically distant, traditional rules take clear precedence over codified laws. (13) The absence of formal justice outposts hampers the dissemination of statutory rules, resulting in a deficient awareness of the formal legal system.

A Linguistic Kaleidoscope

Law is "a profoundly linguistic institution". (14) In fact, law is a kind of language unto its own. Legal systems cannot be detached from the technical language under which they operate. Legal language is a technical idiom in the sense that it is for experts only--that is, jurists. (15) It functions as a variant of natural language and is used in specific settings such as courtrooms. Even though it is based on common language, the legal language is used for technical purposes, resulting in the existence of legal jargon. (16) Law and language are cultural phenomena that can only be properly studied if one takes into account time and context. (17) Naturally, the legal system of Timor-Leste, both in its formal and traditional dimensions, is deeply linked to, and dependent on, the language(s) used.

Timor-Leste has a long history of multilingualism. Even though there is no consensus among authors regarding the exact number, there are at least sixteen language varieties in the country. In addition, the exogenous languages--Malay, Arabic, Chinese, Portuguese, Indonesian and English--are or have at some time been present in the ecology. (18) The three most spoken languages are Tetum, Mambae and Indonesian. (19) No language is spoken as a mother tongue by more than a fifth of the population, and most languages are spoken by smaller numbers of speakers. Even Tetum is a minority language in certain parts of the country. (20) This linguistic kaleidoscope is one of the by-products of the periods of colonialism and occupation, where Portuguese and Indonesian were used as the languages of governance. The introduction of English during the transitional administration compounded the situation. (21) These three exogenous languages are an expression of the different political forces in power over different historical periods. (22) After becoming an independent state...