The „rule of law‟ is a pervasive phrase with contrasting views and usages. This paper attempts to respond to Warren Wright‟s comments that Timor-Leste‟s political leaders have not always demonstrated a clear comprehension of the rule of law and essential democratic principles.
This poses two main challenges: first, the assumption that there is a clear accepted notion of the rule of law that political leaders, democratic ones at least, should understand and demonstrate in their public life; and second, as comprehension is the „capacity of the mind to perceive and understand‟ it is unrealistic to speculate on the mental capacities of these leaders. Hence, this paper will focus on some theoretical and historical underpinnings of the rule of law followed by cultural, legal and leadership challenges facing post-conflict Timor-Leste. Where appropriate, the name “East Timor” will be used instead of Timor-Leste.
2. Comprehension of the rule of law: history and theory
The history of the rule of law spans over two millennia. Professor Tamanaha traced Greek, Roman, and Medieval underpinnings, revealing pre-modern liberal conceptions that shaped present day Western democracies.
In 5th century BC, popular democracy in Greece required males over the age of thirty to engaged in the polis, the political community and to serve as magistrates in a governing Council. To ensure accountability magistrates could be charged with violations of the law following complaints by citizens. Legislation could not be changed arbitrarily and laws were framed in general terms. Citizens enjoyed equality before the law, except women, children and slaves.
In Roman times, Cicero emphasized that the supreme status of law was its consistency with natural law, which was the rule of reason. Law was for the good of the community and to preserve happiness. He held that harmful and unjust rules did not qualify as law and were not supreme. He did not advocate popular democracy but preferred a mixed constitution of unequal power among the classes. In its closing period, Roman law derogated from the rule of law in the Lex Regia, where the people purportedly granted absolute power to the ruler for the preservation of the state.