Reflections on the Law-Making Process in East Timor

[Harold Schiffman]

Reflections on the Law-Making Process in East Timor

Judicial System Monitoring Program Justice Update 22 July 2008

REFLECTIONS ON THE LAW-MAKING PROCESS IN TIMOR LESTE


This Justice Update will consider some of the processes of legislative
development in Timor-Leste, and provide analysis on areas of concern.
The National Parliament is an institution charged under the
Constitution with producing laws in the interests of the community.
One of the primary functions of Parliament is the drafting of laws.
Members of Parliament are assigned to commissions, which consider
policy in different areas of government. Each commission is
responsible for preparing and discussing draft laws on issues relevant
to their portfolio, which are presented for the consideration of the
Council of Ministers. This approach, properly executed, should allow
subject matter expertise to be developed among Commission members in
order to craft adequate solutions to problems in the Comissions'
different areas of speciality.

The Council of Ministers, comprising the heads of each government
department, has the power to put draft laws to the Parliament for
further scrutiny and debate. It may also issue decrees that give
effect to certain decisions (international agreements, for example)
that do not need parliamentary approval. It may also consult
stakeholders in order to inform policy debate, though regrettably this
authority is rarely exercised. Individual members of parliament may
also propose draft laws by direct petition to a full session of
Parliament. Since these have not reached consensus through the
commission system, they are then subject to detailed review. Care must
be taken with legislative proposals that have circumvented the usual
route of commission scrutiny.

A period of consideration is necessary for draft laws to be
appropriately analysed. JSMP, through interviews with
parliamentarians, recently found that a number had abstained from
voting on the Private Lawyers' statute because they had insufficient
time to consider the Bill, and did not understand its content. Clearly
processes to educate MPs on the legislative agenda are in need of
reform.

The parliamentary rules of procedure empower each commission to
organize consultation with stakeholders, or to arrange a public
audience to discuss policy initiatives. JSMP has observed that such
consultations are generally undertaken only in the capital, Dili.
Rarely have people in the districts been consulted about the contents
of draft laws, which brings fair representation into question.

Other, more centrally located stakeholders are regularly overlooked.
For example, the law on arms recently introduced by the Prime Minister
proposes that the PNTL be responsible for a system of gun registration
– JSMP has learned that there was no program of consultation with
police prior to the introduction of this legislative proposal to
Parliament.

Once a law is passed by the Parliament, it is assumed for the purposes
of enforcement that every citizen is aware of its meaning and
application. In addition to public consultation, then, the community
should be kept informed about legislation as it is enacted so that
they are aware of how it may impact on them. With no consistent
governmental mechanism for disseminating legal developments to the
public, adherence to the law becomes problematic. This is especially
true given the proportion of Timor's population that lives outside of
district centres.

The presence of courts in Baucau, Suai and Oecusse may serve as a
focal point for education about judicial process. However, outside of
these district centers customary law seems to be a more familiar and
available method of dispute resolution. The process of drafting a law
must also take into consideration historical and sociological factors
borne of context. This need to reflect local conditions is contravened
by reliance on colonial models of legal doctrine. Portuguese laws,
forr example, which fit into a different domestic context of
protections and constraints, should not be adopted as templates for
Timorese law without considerable modification.

Given Timor is a young democracy with still little regulation over
political action, guarantees or protections implied in other, more
established, legal systems should not be taken for granted when
drafting laws for this country. Perhaps, rather than looking to
legislative influences such as Portugal that share little in terms of
development, useful comparisons might be made in looking to other
post-conflict states.

JSMP has witnessed many legislative initiatives being developed and
prepared for debate. Many have seemingly failed to proceed. Aside from
issues of political priority, this backlog of draft may be attributed
in part to the failure of parliamentarians to attend sessions in which
the contents of draft laws are discussed. The scheduling of sessions
to enable the commissions to discuss urgent issues includes setting an
agenda for the discussion of draft laws. Often the discussion of draft
laws is delayed because less than two thirds of members are present
and therefore a quorum cannot be established. These factors prevent
the Parliament from completing its work in an efficient and effective
manner.

Language presents a considerable hurdle to effective and participatory
legal development. There is concern that Portuguese is used to draft
every law, which is a problem for a number of parliamentary members
who have limited ability in this language, as well as for the majority
of the Timorese public who do not speak it well. The use of legal
jargon, however necessary, further hinders comprehension. A number of
parliamentary members and members of the community have voiced their
concerns about the language issue. It has been suggested that the
original text drafted in Portuguese should be translated into Tetun so
that parliamentarians can all properly understand, and voice an
opinion on, the draft laws for which they are collectively
responsible.

In conclusion, JSMP calls on the Parliament firsly to allow its
commission system to operate more fully as a consultative mechanism,
inviting input from the public and sector stakeholders alike. This
process should allow parliamentarians to become familiar with a policy
area, and to communicate legislative proposals to political colleagues
and the public alike. With no office yet established to communicate
legal information to the citizenry, this burden will remain with MPs
and civil society. Conducting debate in a language better accessible
to all would improve the quality of debate, enabling Timorese
conditions to be better addressed in drafting. It would also assist
subsequent dissemination, which in turn may increase compliance with
the law.

For Further information please contact: Casimiro dos Santos, JSMP
Acting Director
Email : casmiro at jsmp.minihub.org Landline: 3323883

Post sponsored by East Timor Law Journal - Towards the rule of law in
East Timor!

http://easttimorlegal.blogspot.com/2008/08/reflections-on-law-making-process-in.html

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