Modern-Day Babel: Language Politics and Building the Rule of Law in East Timor

• Date: 01 January 2008

Modern-Day Babel: Language Politics and

Building the Rule of Law in East Timor

PÁ DRAI G MCA U L IFFE *

“Think like a wise man but communicate in the language of the people”.

William Butler Yeats

“The great thing about human language is that it prevents us from sticking

to the matter at hand”.

Lewis Thomas

As a country decolonised only eight years ago and independent since 2002,

East Timor provides a case-study that is both topical and unique in

examining the impact of language planning on the development of a

country’s legal system. This paper has three aims. The first is explanatory

in that it unravels the reasons why the government of East Timor has for the

past eight years adopted a policy of developing its former colonial tongue

Portuguese as the language of the justice system when as few as one in five

or six Timorese citizens can speak it, while all Timorese with law degrees

were educated in Bahasa Indonesian, the language of the East Timor’s illegal

occupiers from 1975 to 1999. Ireland is a prominent development partner

with this nascent state, but the Lusophone influence continues to confuse

many international aid officials from other post-colonial states involved in

the development of the new state be they American, Irish or Antipodean.

This confusion betrays a failure to under stand the counterintuitive centrality

of Portuguese in the Timorese national identity. The second aim is more

analytical in that it examines the often deleterious effect of Portuguese

language policies on a developing justice sector struggling to reconstruct

itself, even with international assistance. A third, corollary aim is to

examine the United Nation’s surprising acquies cence to this “lusafication”.

It contrasts the presumption of the UN that a liberal rule of law based on

functioning institutions and human rights would flow automatically from

their institutions and programmes with the subordination of the rule of law

* PhD candidate and Government of Ireland Scholar at the Centre for Criminal Justice

and Human Rights, UCC. This article is taken from a paper circulated by the author

at the “Locality, Local Expect ations, and Rule of Law and Human Righ ts Projects”

Panel at the Law and Society Conference, Montre al, Canada on 31 May 2008. The

author thanks Dr. Siobhán Mullally for her supervis ion and Prof. John Hajek, Trina

Supit and Nelson Fernandes for their factual clarifications and assistance.

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to the development of Portuguese as the language of the courts by the

Timorese government. The experience serves as both an example of the

tendency of international actors to abstract policy-making from realities on

the ground and of the potency of national identity politics in transition. The

experiences of the UN in a number of post-conflict states have

demonstrated that transitional justice and rule of law reconstruction are

constantly hostages to fortune, threatened on all sides by residual hostility,

revanchism, low justice sector capacities and economic hardship.1Language

politics represents a new addition to the canon of factors limiting the

development of respect for law and legal institutions in transitional states.

For the past eight years, instead of sensibly and sensitively integrating

rule of law development with Portuguese language promotion, the UN and

Timorese Government have conflated the two goals. The zeal of the latter

for developing a language far outweighed the relative apathy of the former

in relation to transitional justice and the rule of law. This policy has had

two main effects. Firstly, it impeded the operation of the UN-created mixed

international-Timorese hybrid court operational from 2000 to 2005 trying

crimes against humanity committed by the Indonesian army and local

militias in the aftermath of the 1999 independence popular consultation.

Secondly, it impaired the ordinary criminal justice process by mystifying

trials, stalling the development of professional competencies and alienating

the vast majority of the public who do not speak Portuguese from the

courts. While this policy has been widely and correctly criticized by a

number of observers for hindering the much-needed development of

indigenous legal capacity, these criticisms fail to understand the cultural

relevance of language as a competing value in this nascent state. The reader

is invited to make their own comparisons with the impact of language

politics on professional entry to the Irish legal system, though it should be

noted that while the Timorese are trying to develop their colonial language,

Ireland attempts to revive an indigenous one. Given the vast differences

between the two, the comparison will not be laboured, but it does point out

that the tension between linguistic identity and the orderly operation of law

is not solely a Timorese problem.

Section 1 examines the role of language in constructing collective identity

1For recent examination of the problems that have blighted the process of transitional

accountability in UN peace operati ons, Chandra Lekha Sriram, Confronting Past

Human Rights Violations: Justice Vs. Peace in Times of Transition (1st ed) (London;

New York: Frank Cass, 2004) and Naomi Roht-Arriaza and Javier Marrizcuena, eds

Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice (1st ed)

(Cambridge, UK; New York: Cambridge University Press, 2006). In terms of rule of

law reconstructi on, Charles T. Call, ed, Constr ucting Justice and Security after War

(1st edition) (Washington , D.C: United Sta tes Institute of Peace, 2007) and Jane

Stromseth, David Wippman and Rose Brooks Can Might Make Right s? Building the

Rule of Law after Mili tary Interventions (1st ed) (New York: Cambridge Univ ersity

Press, 2007) are particularly good recent reviews of the problems that have confronted

UN Peace Operations.

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generally and its role in East Timorese identity particularly. Section 2 sets

up the rest of the paper by outlining the role of transitional justice in

creating a new collective liberal identity for post-conflict states generally

with particular reference to the Timorese context. It also outlines the

distinct role of hybrid courts in transitional justice and rule of law

reconstruction, with reference to the parlous state of the Timorese judiciary

after the Indonesian withdrawal. Section 3 goes on to examine how this

internationally-driven political identity creation project clashed with the

Government’s determination to recast identity in terms of language and its

impact on the development of judicial capacity. Section 4 examines the

impact of a 2004 Language Directive on ordinary trials and on the training

and mentoring of Timorese judicial actors for entry into the ordinary

criminal justice system, before Section 5 concludes by suggesting what the

international community and Timorese Government might learn from these

experiences in future justice system reconstruction projects.

Language and Identity in East Timor

Language has always been one of the key differentiating factors in human

and political affairs, a matter as true in the Old Testament massacre of the

Ephraimites by the Gileadites (the former identified by the latter on account

of their pronunciation of the word “shibboleth”)2as it was in the Sudetenland

the 1930s3and in Ireland4and Northern Ireland5today. Because people

cannot change their language easily, it serves to signal belonging or differ -

ence in and between communities. As de Varennes puts it:

Because of the status of language as the principal link between

2Judges, Chapter 12

3Christopher M. Hutton, Lingui stics and the Third Reich: Mother-tong ue fascism,

race and the science of language (1st ed) (London: Routledge, 1999)

4David McKittrick, “Irish becomes the 23rd official language of the EU”, The

Independent(3 January 2007) http://www.independent.co.uk/news/world/europe/irish-

becomes-the-23rd-official-language-of-eu-430615.html, accessed on 4 June 2008:

“The Irish language has been giv en official status in Europe, taking its place as

the 23rd languag e of the European Union. The move y esterday received

curiously little attention in the Repub lic of Ireland, given that the language has

at times been regarded as a semi-mystical part of the national identity.”

5Stephen Dem pster, “War of words over funding for Ulster-Scots and Irish”, News

Letter (15 February 2006) h ttp://www.newsletter.co.uk/news/War-of-words-over-

funds.3781827.jp, accessed on 4 June 2008:

“THE DUP has said that plans to spend more on the promotion of Ulster-Scots

than the Irish language over the next three years, is a re-dressing of an imbalance

which has existed for some time. Sinn Fein, however, has said this spending plan

is exposing Culture Minister Edwin Poots to accusations of bias, particularly as

it co mes in the wake of his blockin g of the Irish Langu age Act … The Irish

language umbrella group Pobal has accused the DUP of using the language as ‘a

punchbag’. But DUP MLA and Assembly Culture, Arts and Leisure Committee

member, Nelson McCausland said this was a case of ‘evening things up’”.

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