Saturday, 19 May 2012

Some Notes on East Timor’s Government Decree No 1 of 2004 on the Orthographical Standard of the Tetum Language

Original Citation: 2004 ETLJ 10 Some Notes on East Timor’s Government Decree No 1 of 2004 on the Orthographical Standard of the Tetum Language


On 31 March 2004, the Government of the Democratic Republic of East Timor issued Government Decree No 1 of 2004 entitled “Orthographical Standard of the Tetum Language". The preamble to this Decree notes the following:

Tetum, given its dual status as an official and national language, must be used in a consistent manner in the entire administration of the State and in other institutions, as well as by the mass media.Tetum is an essential element in the construction of the Nation and in the affirmation of East Timorese identity.

For this reason its utilization is a constitutional imperative and its implementation is a matter of urgency. To this end it is essential that its orthography be made uniform as part of the process of developing the language.

Conscious of the strategic importance of the Tetum language in the cementing of national unity, the Government hereby decrees in the terms of paragraph o) of Article 115° of the Constitution of the Republic, as a regulation with force of law."

Adoption and Implementation of the Orthographical Standard for Tetum
The Decree then goes to “adopt the orthographical standard (standard spelling system) for Tetum as developed by the National Institute of Linguistics at the National University of East Timor”. [Article 1]

It confirms that the variety of Tetum recognized as the official and [first] national language is Official Tetum, a modern literary form of the vernacular most widespread in the country and based on Tetum-Praça with the proviso that this choice is made without prejudice to those varieties of Tetum circumscribed to particular regions, which varieties the State preserves and fosters as national languages. [Article 2]

The Decree then provides that the orthographical standard of Official Tetum must be adhered to in the general education system, in official publications and in social communication.It further provides that priority must be given to Official Tetum and to Portuguese in public images and signs and that English and Malay-Indonesian as simple working languages must not be used in public images and signs unless they are accompanied by texts in Tetum and Portuguese with greater visual prominence. [Article 3]

The Role of the East Timor National Institute of Linguistics
The role of the East Timor National Institute of Linguistics (INL) is set out in this Decree as follows:

1. The INL is the scientific custodian of Official Tetum.

2. The INL must develop the scientific activities necessary to the  preservation and protection of the other national languages, devising orthographical standards for each of them.

3. Research and developmental work relating to Tetum and the other national languages of the Democratic Republic of East Timor must be conducted in strict co-operation with the INL.

4. Foreign linguists and scholars must submit their project proposals for approval and obtain permits from the INL in order to carry out their research and work activities, or else face the penalties relating to illegal activities.

5. The INL may refuse to grant a permit if it does not find scientific merit in the research project or if the research in question offers no advantages to the country.

6. Appeals relating to the rejection by the INL of a requested permit may be addressed to the Ministry of Education, Culture, Youth and Sport which will be the final judge in such matters. [Article 4]

Legal Issue Arising from Decree No 1 of 2004
By Article 4.4 of this Decree, foreign linguistics and scholars who fail to submit their project proposals for approval and obtain permits from the INL in order to carry out their research and work activities will be subject to the penalties relating to illegal activities.

This provision raises a question about the fundamental validity of the Decree.

The purported legal basis of the Decree, as is noted in the Preamble, is Article 115 paragraph o) of the Constitution. This Article of the Constitution, under the title “Competence of the Government”, provides that 1. It is incumbent upon the Government…o) To take actions and make all the arrangements necessary to promote economic and social development and to meet the needs of the Timorese people;… This Article does not expressly confer any legislative powers on the Government. Nor is it clear that the Government may exercise any legislative powers by a mere Decree rather than a Decree-Law, which is the usual legislative vehicle for the exercise of legislative powers by the Executive.

Furthermore, in relation to the definition of crimes and penalties, which Article 4.4 of the Decree purports to create, it is necessary to consider Article 96 of the Constitution (Legislative Authorisation) which provides that: 1. The National Parliament may authorise the Government to make laws on the following matters:a) Definition of crimes, sentences, security measures and respective prerequisites;Decree No 1 of 2004 does not recite any prior authorisation from the National Parliament to the Government to make laws defining crimes and sentences. The authorisation to the Government to make laws on the matters itemized in Article 96.1 must be in the form of a law that defines “the subject, sense, scope and duration of the authorisation, which may be renewed ”[Article 96.2 Constitution] and such laws “shall not be used more than once and shall lapse with the dismissal of the Government, with the end of the legislative term or with the dissolution of the National Parliament.”

No such law of the National Parliament has been enacted and therefore Decree No 1 of 2004 does not seem to comply with the relevant provisions of the Constitution in so far as it purports to define a crime or sentence because in the absence of the necessary legislative authorisation from the National Parliament. The attempt to create a crime and impose penalties by a Decree is not a valid exercise of the Government’s legislative powers because sovereignty, pursuant to which law-making powers are exercised, must be exercised "in the manner and form laid down in the Constitution and the validity of the laws and other actions of the State and local Government depends upon their compliance with the Constitution". [Article 2

The other notable thing about this Decree is that any appeal relating to the rejection by the INL may only be made to the Ministry of Education, Culture, Youth and Sport which is declared as “the final judge in such matters” by Article 4.6. There should be provision for appeals against administrative decisions to be made to the Courts.

Although it does not yet exist, there is provision in the Constitution (Article 129) for the establishment of a High Administrative, Tax and Audit Court. It is incumbent on this judicial body, among other things, to “judge contentious appeals against decisions made by State organs, their respective office holders and agents”. [Article 129.4.b Constitution] The delay in the establishment of this basic Court in the court system contemplated in the Constitution is also a concern. Its absence restricts the avenues of independent judicial review of executive decision making. One of the reasons that is sometimes cited for the failure to establish the High Administrative, Tax and Audit Court is the lack of qualified and experienced judicial officers. But there is provision for the appointment of foreign judges to this Court. In newly independent South Pacific nations, for example, Australian and New Zealand judges were appointed to the superior courts.

Appeal from administrative decisions to the Courts is a fundamental principle arising from the separation of powers doctrine that is entrenched by the Constitution in Article 69 (Principle of separation of powers): Organs of sovereignty, in their reciprocal relationship and exercise of their functions, shall observe the principle of separation and interdependence of powers established in the Constitution.

It is surprising that there has been in this instance what appears to be an exercise legislative powers by this Decree which is in conflict with the provisions of the Constitution in relation to the exercise of those powers. It is also of concern that it might be interpreted as seeking to exclude the judicial review of administrative decisions.

It is also odd that the matter of intellectual endeavor and scholarly research, in this instance, research and developmental work relating to Tetum and the other national languages of the Democratic Republic of East Timor is purportedly the subject of criminal sanctions for failure to comply with the requirement of obtaining a permit from the INL; whereupon one would be subject to the penalties for illegal activates. Precisely what crime would be committed for failure to obtain the INL permit and what penalties apply are not specified. This lack of certainty also raises issues about the validity of the decree.

It would have been sufficient, if at all necessary, that foreign researchers who do not comply with that requirement would be subject to administrative warnings in the first instance and be liable to have their visa revoked and subject to deportation if they then failed to comply with those warnings. Such heavy-handed provisions are authoritarian and anti-intellectual.

Warren L. Wright
Dili 07 May 2004
Revised 24 May 2004, 30 March 2006

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