Comparative Law in Practice

A Timor-Leste experience

Lecture given at the Australian Catholic University, Melbourne

RTF version

It is a pleasure to be able to talk about my experience in Timor-Leste, and the introduction into that country of anti-corruption measures. Mindful that I am talking to students of comparative law, I will focus some of my comments on the approach taken by a common law practitioner in a civil law country.

The grasp of general legal principles, and not just the rules, assists every lawyer, and particularly in undertaking work to help develop a system of anti-corruption laws in Timor-Leste, basically a civil law country.

As E.J. Schuster wrote, as long ago as 1907, in “The Principles of German Civil Law”:

Even those who look upon the study of law exclusively as a help to professional success have begun to see that the grasp of legal principles is of greater value than mere knowledge of cases and of isolated rules. Such a grasp of principles is, however, unobtainable, unless law is looked upon as an organic whole of which every part is correlated to the other, and unless the origin and growth of each individual institution is examined with the same care as the evolution of a particular species of the fauna or flora of a country is examined by the biologist. Both as regards the examination of the manner in which the various parts of the system are correlated, and as regards the study of the evolution of the particular species, the comparative method is as indispensable to the scientific lawyer as it is to the biologist.

Let me set the scene, before explaining the process of the introduction of anti-corruption legislation in the small independent State of Timor-Leste.

Timor was first colonized by the Portuguese in 1520.  The Dutch, who claimed many of the surrounding islands, took control of the western portion of the island in 1515.  Portugal and the Netherlands fought over the island until an 1860 treaty divided Timor, granting Portugal the eastern half of the island.

In 1949, the Netherlands gave up its colonies in the Dutch East Indies, including West Timor, and the nation of Indonesia was born.  Timor-Leste remained under Portuguese control until 1975, when the Portuguese abruptly pulled out after 455 years of colonization.  The sudden Portuguese withdrawal left the island vulnerable and, nine days after the Democratic Republic of Timor-Leste was declared an independent nation, Indonesia invaded and annexed it.

Indonesia’s invasion and its brutal occupation of Timor-Leste, which was small, remote, and desperately poor, largely escaped international attention.  Timor-Leste’s resistance movement was violently suppressed by Indonesian military forces, and more than 100,000 Timorese are reported to have died from famine, disease, and fighting since the annexation.

After Indonesia’s hard-line president Suharto left office in 1998, his successor, B. J. Habibie, unexpectedly announced his willingness to hold a referendum on Timor-Leste.  On 30 August 1999, 78.5% of the population voted to secede from Indonesia.  But in the days following the referendum, pro-Indonesian militias retaliated by razing towns, slaughtering civilians, and forcing a third of the population out of the province.  After enormous international pressure, Indonesia finally agreed to allow UN forces into Timor-Leste on September 12.  Led by Australia, an international peacekeeping force began restoring order to the ravaged region.

On May 20, 2002, nationhood was declared. Charismatic rebel leader JosÉ Alexandre GusmÃo, who was imprisoned in Indonesia from 1992 to 1999, was overwhelmingly elected the nation’s first president.

By 2008, after some turmoil in the country, the Government wanted to set up anti-corruption laws as part of a year of Administrative Reforms.

After a request from the Timor-Leste government, my then Associate and I went to Timor-Leste to consider various options for an anti-corruption legislative scheme and to draft legislation.

This involved looking at a number of legislative anti-corruption regimes set up around the region.

The drafts prepared by us were in English, and were sent to Lisbon in Portugal to be translated into Portuguese. They were then sent back to Dili (the capital of Timor-Leste) for consideration by the people in authority there. Most of the ruling group speak and read Portuguese. In addition, the official language of Timor-Leste is Portuguese and Tetum, so all legislation must be written in Portuguese. I should say many changes were made by civil lawyers to the draft legislation we provided before it was finally enacted, so we cannot take credit for the final version of the legislation.

With this process in place, the concepts involved in fighting corruption and setting upon an anti-corruption body were relatively common and universal. There were many legislative regimes in the region dealing with the problem of corruption.

Let me explain then the structure and purpose of the legislative regime now in place in Timor-Leste, which was a regime adopted from the various regimes in place in other countries.

The preamble to the Act setting up the Anti-Corruption Commission, which explains the purpose of the Act, reads as follows:

Timor-Leste has the obligation to respect and comply with the traditional international law and with international high standards of good governance.

Therefore, Timor-Leste must understand that corruption harms the finance and economy of the State, inhibits national development and needs to be fought so that an equitable and prosperous society may be built, based on the principles enshrined in the Constitution;

For this purpose, the IV Constitutional Government adopted as one of its priorities the creation of an efficient, quick and effective Commission, able to fight corruption in all its forms, granting it powers and duties to investigate and expose corruption in a manner that is efficient, quick and effective, and which promotes a culture of State integrity, transparency and accountability;

Timor-Leste has been considering several options and models of anti-corruption commissions all over the world, in particular in Indonesia. The models of Singapore, Hong Kong, Macau, Malaysia and Australia have also been also considered.

Timor-Leste has been trying to adapt as much as possible the concepts and principles enshrined in the United Nations Convention Against Corruption, namely in what concerns the strengthening of capacity building and institutional development, in order to efficiently prevent and fight corruption. At the same time, the Government acknowledged the fundamental principles of due process.

The proposed law, which seeks to set up the Commission, has the advantage of creating an independent body dedicated exclusively to investigating and fighting corruption, enabling a higher degree of specialization and knowledge, and consequently greater credibility before the public and greater international acceptance;

One of the most important aspects of any anti-corruption law is to make it effective and have some teeth. In this regard, any anti-corruption legislation has to encompass all forms of corrupt behaviour and encompass all those in public office, including members of Parliament and the judiciary. This is an essential aspect of any anti-corruption measure, no matter whether such measures are introduced into a civil law or common law country.

The wide scope of the legislation introduced into Timor-Leste can be readily seen by the definitions of “corruption”, “Public Officer”, and “Public Agency or body”. The following definitions are included within the Act.

Corruption means:

(a) any conduct involving abuse of power or trust, or the violation of the duties of a public officer, enriching or benefiting himself or herself and / or other persons, or causing damages to a person;

(b) any conduct by any person, regardless of being a public officer or not, harming the honest or impartial performance of public functions by a public officer;

(c) any conduct by a public officer or a former public officer involving the undue use of information or materials he or she acquired during the performance of his or her official functions;

(d) any conduct by a public officer that constitutes or involves the dishonest or biased performance of an official function he or she performs;

(e) any conduct by any person, regardless of being a public officer or not, that harms or may harm the performance of official functions by any public officer, group or body of public officers, or any public agency or body:

Public officer includes individuals with public official functions or who act in a public official capacity, including namely the President of the Republic, the Prime Minister, Ministers, the Vice Prime Minister, Vice Ministers, Secretaries of State, Members of Parliament, the Prosecutor General, civil servants and other managers, staff and workers from State bodies and services, prosecutors and judges, as well as any person who performs a duty that normally is under the responsibility or competence of the government, as set in section 115 of the Constitution of Timor-Leste, national laws and international instruments, even if that function may be and is delegated or contracted out to a private body.

Public agency or body includes:

(a) State departments and government institutions, including the legislative, administrative and judicial branches of the State, the national police of Timor-Leste (PNTL) and the Falintil – Defence Force of Timor-Leste (F-FDTL);

(b) local administration;

(c) government commissions and agencies;

(d) State owned companies;

(e) companies where the government holds over 50% of the capital; and

(f) any other body indicated by law.

In addition, the Anti-Corruption Commission established by the Act has very wide powers, all reminiscent of powers given to investigating bodies in Australia and elsewhere.

Examples are as follows:

Section 18

Penal procedure acts

1. In relation to penal procedure acts within the scope of the Commission, the Commissioner and his or her deputies have the status of criminal police authority.

2. In relation to searches, raids and apprehensions, the Commission has the competences given by the penal procedure legislation to the Public Prosecution.

3. Searches, raids and apprehensions listed in the previous paragraph that, in duly justified exceptional circumstances of urgency, are done without the proper judicial authorization, must be validated through the Public Prosecution by the competent judicial body within the maximum time limit of 72 hours, after which they will be considered illegal.

Section 19

Investigation guarantees

1. When in service, the Commissioner, his or her substitute and the investigation staff have the following prerogatives in relation to criminal police authorities, in conformity with the penal procedure law:

a) Right of access and free transit, in conformity with the law, for the duration and at the time required for the performing of their functions, to all services and facilities of the public and private bodies subjected to their attributions;

b) Request for examination, consultation and attachment to the records, any relevant books, documents, records, files and other documents possessed by bodies that are having their activities investigated;

c) Collect information on the activities under investigation, examine any indications of infractions and consider expert inspections, measurements and samplings for laboratory examinations;

d) Carry out investigations, so as to obtain evidence, at the places where activities under their scope of action take place, without the need for previous notifications;

e) Promote, in the applicable legal terms, the sealing of any facilities, as well as the seizing of documents and objects of proof in possession of bodies being investigated or their staff, if considered indispensable for the action; the relevant record must be drafted for this;

f) Request the collaboration of police authorities, in the cases of refusal of access or obstruction to the exercise of the action or investigation by the targets, in order to remove that obstruction and to ensure that investigations are carried out safely;

g) Instruct any financial institution to freeze any bank account, whenever there are strong indications that it contains profits from corruption, regardless of the bank secrecy regime set by law;

h) Order that any person is prevented from moving or using any assets in his or her possession or custody, or being controlled by any other person;

i) Order that the suspect is prevented from leaving the country or his or her residence.

2. Whenever there are strong reasons for it, the Commissioner may, through written notification, under the terms of the penal procedure legislation:

a) Order any suspect to hand over his or her passport or travel documents immediately to the Commission;

b) Request the adoption of necessary and urgent temporary measures to ensure the means of proof, when needed, in conformity with the Penal Procedure Code;

c) At the places under investigation and provided by the bodies being investigated, use facilities with the necessary conditions of dignity and efficiency for working;

d) Exchange service correspondence with all public or private entities on matters under their competence;

e) In compliance with the legal formalities, issue the necessary summons for carrying out investigations, by himself or herself or through the police authority.

3. Investigation acts listed in the previous paragraphs may, in duly justified exceptional circumstances of urgency, be done without a previous mandate from the competent judicial authority, but must be validated within 72 hours, after which they will be considered illegal.

4. Where the law requires validation by a judge, it must be requested by the public prosecutor responsible for the case together with the Commission.

Section 20

Other measures

The interception and recording of conversations or electronic communications, as well as the detaining of persons, may only be ordered jointly by the Public Prosecution and the Commission, by way of judicial decision under the penal procedure legislation.

Section 21

Compulsory private examinations

1. The Commission may conduct a compulsory examination.

2. A compulsory examination is to be conducted by the Commissioner or by a Deputy Commissioner, as determined by the Commissioner.

3. A person required to attend a compulsory examination is entitled to be informed, before the compulsory examination, of the nature of the allegation or complaint being investigated.

4. A compulsory examination is not public, however an attorney is allowed to be present. A person being examined must be informed of this in a formal and timely manner.

Section 22

Summons

1. The Commissioner may summon a person to appear before the Commission at a compulsory examination or public inquiry at a time and place named in the summons, in order to make statements or present documents or evidence, if there are any.

2. A witness who has been summoned to attend before the Commission shall appear and present himself or herself according to the summons.

3. A person who, after having been duly summoned, without justification, does not attend or respond to the questions, is punishable according to the penal legislation.

It will be readily seen that these ‘concepts’ are common to our investigative bodies, including those set up in New South Wales and in Victoria. Details may differ, thresholds of enquiry may be lower or higher. However, the concepts are the same.

Which brings me to observe that whilst Timor-Leste is a civil law country, the civil law/common law divide was not important, other than in legislative drafting style and from a conceptional view point.

The drafting style of civil law statutes follows that of the classic codes. Civil law texts are sometimes regarded as concise (i.e. readable!), whereas legislation in the tradition of the common law tends to be more prescriptive (i.e. more complex!) Excessive particularity may be seen as a real problem associated with statutes of common law countries. However, there is now an emphasis on plain English drafting in the common law, so the difference in the two styles may be not so pronounced. There are, of course, exceptions to this generalisation.

In addition to drafting style, there is one fundamental difference between the approach of the civil law and common law. This crucial difference between civil law and common law concerns the perception of the concept of law itself. It will be recalled that, historically, the study of the civil law involved the teaching of ‘learned law’ at the medieval universities. In a more contemporary context, the study of law in a civil law country continues to be an intellectual pursuit first and foremost. The practical application of the law occupies second place. Teachers in the civil law impress upon their students the general rules and basic principles of the various areas of law to be studied, more than rules to be learnt by rote.

So, the main difference in approach, involving drafting style and conceptional approach, was how “prescriptive’ to be in drafting the legislation itself.

In the end, the Act establishing the Anti-Corruption Commission was very simple in its terminology and set out a series of ‘guidelines’ (in common law terms), and left details to be determined on a case by case basis.

One particular difficulty we had was to make sure the legislation was in keeping with the Constitution of Timor-Leste, which Constitution included various “civil rights”. Let me give you some examples of some constitutional guarantees, which at first blush seem to make some of the powers given to the Commission difficult to regard as compatible with the Constitution.

Section 23

(Interpretation of fundamental rights)

Fundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rights.

Section 24

(Restrictive laws)

1. Restriction of rights, freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution.

2. Laws restricting rights, freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effect.

Section 36

(Right to honour and privacy)

Every individual has the right to honour, good name and reputation, protection of his or her public image and privacy of his or her personal and family life.

Section 37

(Inviolability of home and correspondence)

1. Any person’s home and the privacy of his or her correspondence and other means of private communication are inviolable, except in cases provided for by law as a result of criminal proceedings.

2. A person’s home shall not be entered against his or her will, except under the written order of a competent judicial authority and in the cases and manner prescribed by law.

3. Entry into any person’s home at night against his or her will is clearly prohibited, except in case of serious threat to life or physical integrity of somebody inside the home.

Section 38

(Protection of personal data)

1. Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her, and he or she shall have the right to demand the purpose of such data.

2. The law shall determine the concept of personal data, as well as the conditions applicable to the processing thereof.

3. The processing of personal data on private life, political and philosophical convictions, religious faith, party or trade union membership and ethnical origin, without the consent of the interested person, is prohibited.

Obviously, various provisions of the legislation introduced impacted on personal freedoms, and the inviolability of a person’s home. I have already made mention of the main provisions. The essential safeguard to protect the rights of the citizens was to involve the judiciary, so that there was at least a proper consideration of any impact on personal freedoms, and of the necessity for the use of coercive powers.

I conclude by mentioning an aspect of jurisprudence which I have reflected upon following upon our experience in Timor-Leste.

Aristotle pointed out as long ago as the fourth century B.C. that law is always crouched in general language: no amount of foresight can provide for every particular case that can arise within that intended to be covered by the law.

The approach adopted in Timor-Leste has been one of using general language. There is something to be said for this methodology, depending on the context. Some legislation needs to be very prescriptive because of the nature of the topic legislated and the mischief sought to be remedied. However, whatever approach is adopted, every legal problem to be solved in the courts involves application of rules, which are general, to facts, which are particular. The facts must be determined and classified, and the legal principles applied accordingly. Over emphasis on defining words may not solve all problems of avoiding confusion, and being too prescriptive may lead to unfairness. However, this is a topic for another day.

I now leave you so you all can enjoy your morning coffee.