Friday, 25 May 2012
East Timor : Language and The Law
Legal information on East Timor is difficult to find even on the web. There are hardly any East Timor law-dedicated sites even though it has been 6 years since East Timor won its independence. The other problem is that even when access to East Timor legislation is found, new laws are issued by the East Timor Parliament and the Government only in the Portuguese language which hardly anyone in East Timor can understand. Although Portuguese is spoken by many people (for example, in Brazil and Portugal), the distribution of this language throughout the world is also very limited.
Language of the Law and the Rule of Law
This language issue presents serious problems for the whole idea of the rule of law in East Timor: How can citizens be expected to comply with law that can not be read by the ordinary person? Even lawyers have difficulty interpreting law when they know the language in which the law has been drafted! It is incomprehensible that a government in any country would issue laws in a language that is not understood by its citizens and the East Timor government needs to review this policy.
This also presents problems not just for the citizens but also for the police and private lawyers trying to advise their clients about their legal rights and obligations. Again, hardly any of the police in East Timor understand Portuguese so how can they enforce the law properly? Similarly, the private lawyers in East Timor were nearly all educated in Indonesian law schools and have never learnt Portuguese so they also encounter grave difficulties in advising and representing citizens charged with criminal offences.
How can we speak of the efficacious rule of law in East Timor in these circumstances?
Legal Language and the Courts in East Timor - Problems in the Administration of Justice
In the courts of East Timor, the language problem in even worse when it comes to the administration of the law by judges. The government of East Timor has been appointing foreign judges from Portugal to the bench in East Timor. The consequences of this are also of concern. The first problem here is that the vast majority of the applicable law in East Timor is based on the Indonesian legal system and only available in the Indonesian language. The Portuguese judges can not read Indonesian and there is a scarcity of Portuguese/Indonesian translators so in order for the Portuguese judge to understand the law that he or she must apply, the Indonesian text has to be translated into English and then translated again into Portuguese. In this double translation process, the fine nuances of legal words and phrases and even the whole spirit of the original text are distorted, if not lost. In these circumstances, it would not be surprising if there were cases of miscarriages of justice for the people of East Timor.
The second problem that the language issue presents to the Courts of East Timor is that while the judge is conducting the proceedings in his or her mother tongue, namely, Portuguese, the police and the accused will in most cases not understand this language and will only be familiar with either Tetum or Indonesian. So everything must be translated. And again, sometimes there has to be a double translation which carries the risk described above of losing the original meaning of the law or of the evidence. Here, the issue can often be even more complicated if, for example, the judge is speaking in Portuguese, the prosecutor is using Tetum but the defendant or the accused may only speak his or her regional language. In remote areas of East Timor, even Tetum and Indonesian are not understood and one of as many as 35 different regional languages may be the mother tongue of the defendant or accused. So the language problem and the interpretation and meaning of law and evidence is further compounded by this.
Issues for Non-Portuguese speaking Critiques of East Timor law
One of the important aspects of any legal system is the capacity for it to be subject to constant scrutiny and critique. Law should never be carved in stone so that it is unchangeable. The law must evolve with society. The law must also comply with fundamental human rights precepts and the Constitutional regime governing the enactment of legislation. While foreign critiques of a nation's law might be ignored by the legislators, there are many prominent and learned international jurists who are able to assess a nation's laws to see if they do comply with basic standards of justice and equity and, if necessary, trigger a reform movement that might be participated in by national citizens and entities who advocate for law reform within a country.
As English is fast becoming the leading language of international law and economy and is widely spoken and understood, it is important that a country's laws be available in English so that they can be subject to this scrutiny and critique process. English translations are also of critical importance for foreign investors who need to know the legal regime governing their investment and activities. In East Timor, it is only because of the United Nations office (UNOTIL) that most of the laws enacted by the Parliament and the Government of East Timor have been translated and published in English. Although the translations are not official translations, they are still a valuable source of legal information on East Timor for these purposes.
Warren L Wright BA LLB
Sydney 19 June 2006
See also: East Timor: Expert calls for end to legal language barriers
Dili, 24 Jan. (AKI) - East Timor’s laws should be translated into the local Tetun language to give people a better understanding and respect for the law, according to one of the country's legal experts.
In an interview with Adnkronos International (AKI), Warren Wright, editor of the East Timor Law Journal, commended the Asia Foundation’s access to justice program – which is translating the laws.
But he claimed that this action was not enough.
“Access to the law in a language that one understands is a fundamental democratic right that has not always been a salient feature in East Timor,” Wright told AKI.
“Through laws, citizens get to know their legal rights and obligations in relation to each other and to the state, as well as the nature of the legal conflict resolution mechanisms."
However, Wright stated that more needs to be done to make the laws accessible to East Timor’s one million people, half of whom cannot read or write.
“It is still also necessary to inform ordinary people about the meaning of the laws. The government should carry out public information campaigns about important new laws, and how they affect society,” he said.
The Asia Foundation’s program includes a public legal information campaign. The program uses talkback radio programs, public meetings in rural areas, and posters and brochures to educate citizens about the country’s evolving legal framework.
Among the new Tetun-language publications is a reference volume for the court of appeal, an explanation of court responsibilities, and brochures explaining key provisions of the new penal procedures code.
Most of East Timor’s laws were written in Portuguese, the language of the former colonizer.
Portuguese and Tetun are two official languages in East Timor but the former is now only understood by, and associated with, a tiny political elite residing in Dili.
The language barrier in understanding the laws mirrors similar difficulties faced by East Timorese in obtaining jobs in public administration, where Portuguese is often required.
Most of the young, educated East Timorese studied in Indonesian-run schools during Jakarta’s 24-year long occupation of the former Portuguese colony.
The language issue has often been mentioned as one of the main reasons for the alienation of the young and the violence that still pervades East Timor.
1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992