Timor-Leste: Rule of Law, or Only Rule?
February 3, 2010
News stories have told the stories of thousands of Timorese people who suffered greatly during the 24-year fight for independence from Indonesia. However, perhaps a less told story is that many Timorese were also arbitrarily detained during that period, a violation of the principle of rule of law as stated in the constitution.
On Aug. 30, 1999, 78 percent of Timorese people voted for independence in a United Nations-sponsored referendum. In the beginning of 2002, 88 members of the Constituent Assembly drafted and approved a new constitution that states that Timor-Leste is to be a “sovereign, independent and unitary State based on the rule of law, the will of the people, and the respect for the dignity of the human person.” The new constitution helped to boost the confidence and hope of Timorese citizens in a secure democracy that respects the rule of law.
Eight years later, one could ask if the application of rule of law as stated in the constitution is applied in practice in Timor-Leste. Although state sovereign bodies do work hard to obey the law, the State still makes some decisions that contradict the constitution. In some cases, other equally important issues need to be considered, including security and economic development. However, the State must continue to work so that these rights aren’t mutually exclusive.
Article 69 of the constitution defines the principle of separation of powers as: “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.” Yet, despite this, the president and prime minister have intervened at times in the work of the judiciary. For example in 2008, the government denied the Court of Appeal’s decision to establish the Economic Stabilization Fund, which aimed to rebuild the economy through programs that address the effects of the economic crisis, including food security. Another example, as reported in the news was the prime minister’s decision in 2008 and 2009 to release a number of prisoners charged with crimes against humanity. This act violated articles in the constitution that state that Court decisions shall be binding and shall prevail over the decisions of any other authority and that the State shall be subject to the constitution and to the law.
The reciprocal relationship between democracy and the rule of law is paramount to Timor-Leste’s success as a genuine democracy. The courts are a central means of implementing rule of law, but their ability to uphold the rule of law is required.
In general, to effectively establish rule of law in developing countries such as Timor-Leste, reform is critical, including law reform, institutional reform, support for and strengthening of the legal profession, and improving access to justice. With the help of international investment, much has been invested in Timor-Leste to empower bodies, including the justice sector, to govern based on the rule of law.
Despite what some might consider an arduous process, progress has been made. Timor-Leste has ratified nearly all of the UN treaties, including the International Convention on Anti-Corruption. But a formal signature is just the beginning. New laws and reforms must be implemented at home to ensure that rule of law is upheld in daily life.
The Asia Foundation works with local institutions in Timor-Leste to strengthen the rule of law and local governance, increase both citizen’s and the legislature’s roles in legal reform, advance women’s rights, and increase cooperation between citizens and police on local security. Read more about the Foundation’s work in Timor-Leste.
Timotio de Deus is The Asia Foundation’s Senior Law Program Officer in Timor-Leste. He can be reached at [email protected].
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