Introduction
Travelling through the main crossroads in East Timor’s capital city, Dili, one could barely escape the many billboards, posters, and graffiti condemning corruption and highlighting its potential adverse effects on the young nation. At one major crossroad, a billboard sponsored by Misereor,Footnote 1 the Timorese Anti-Corruption Commission, and the United Nations Office on Drugs and Crime (UNODC) loomed over the busy traffic with an image of Timorese school children holding placards declaring “Kastigu korruptor”Footnote 2 and “Labele estragon ami nia futura.”Footnote 3 In schools, multiyear partnerships supported by Misereor, Interpeace, the Australian embassy, and the Centre for Peace and Development (a Timorese non-governmental organization [NGO]) aimed at developing civic awareness among young children have introduced illustrated storybooks (Bano no Binoi) and anti-corruption songs that explain the phenomenon of corruption, collusion, and nepotism. Beyond the billboards, training manuals, songs, and television series, local-international partnerships to address corruption have also extended to state institutions through legal and technical assistance arrangements at the National Parliament, Timorese Office of the Public Prosecutor, local courts, and the Anti-Corruption Commission. Inside the Office of the Public Prosecutor and the Anti-Corruption Commission, international actors were appointed as advisers, strategists, and mentors to assist Timorese officials to fight corruption. The Timorese anti-corruption agency was even staffed with a government official, who was exclusively assigned to develop partnerships with international partners.
I examine these international-local engagements that enabled the adoption of regulatory arrangements to address corruption in the newly independent state of East Timor. My argument is that, when actors with diverse normative and regulatory aspirations over addressing a globally identified problem encounter a local setting, they have the option of either walking away or entering into a compromise on what aspects of the identified problem will be addressed and how it will be tackled. While compromises allow for the introduction of new regulatory arrangements to address the identified problem, they also influence the limits and possibilities of the adopted regulatory arrangements. In the Timorese context, there were different groups of international and local stakeholders who were invested in shaping the anti-corruption initiatives in the country, and I argue that these diverse groups of international and local stakeholders who were at the forefront in the transfer, adoption, and implementation of the new legal and institutional arrangements to address corruption navigated their differences by entering into compromises and eventually shaped the adopted regulatory space to tackle the issue of corruption in the country.
The involvement of international actors in transferring legal solutions to address transnationally identified global problems in local contexts is well documented (Dezalay and Garth Reference Dezalay and Garth2002; Goodale and Merry Reference Goodale and Engle Merry2007; Merry Reference Merry2009; Berger Reference Berger2017). Within this theme, different scholars have examined the motivations of such initiatives (Mattei and Nader Reference Mattei and Nader2008; Pahuja Reference Pahuja2011), the resulting power dynamics (Desai and Woolcock Reference Desai, Woolcock, Hickey, Sen and Bukenya2015; Kennedy Reference Kennedy2018), and the implications that it has on the local social setting (Tamanaha Reference Tamanaha2011; Eslava Reference Eslava2015; Berger Reference Berger2017). However, there have been limited attempts to disentangle the resulting regulatory frameworks that develop from such interactions. Comparative law scholars have engaged with this issue (to a certain extent) through the optics of legal transfersFootnote 4 (Watson Reference Watson1993, Reference Watson1995; Cairns Reference Cairns2012). Using legal transfers as their lens, they describe how new laws and institutional arrangements reach local contexts, what factors enable the movement of certain standards to reach a recipient society, and how the transferred laws are harmonized and adopted in that society. The main concern of comparative scholars has been the movement and adoption of law between a dominant transferor and a recipient society that is targeted for reforms or is seeking reforms (Nelken and Feest Reference Nelken and Feest2001; Gillespie and Nicholson Reference Gillespie and Nicholson2012; Siems Reference Siems2014) and their successes in transferring new regulatory forms to recipient societies (Snyder Reference Snyder1982; Nelken Reference Nelken2001; Peerenboom Reference Peerenboom2013). But contemporary legal transfer projects involve (often simultaneously) a range of international and local actors in the process of the transfer, adoption, and implementation of new regulatory arrangements in a local setting.
Transnational law scholars have documented the construction (Halliday and Shaffer Reference Halliday and Shaffer2015; Shaffer and Aaronson Reference Shaffer and Aaronson2020) and movement (Dezalay and Garth Reference Dezalay and Garth2002; Carruthers and Halliday Reference Carruthers and Halliday2009; Halliday and Shaffer Reference Halliday and Shaffer2015; Garcia Reference Garcia2016; Shaffer and Aaronson Reference Shaffer and Aaronson2020) of regulatory models from core international sites of norm creation to the peripheral national and local sites where such arrangements are meant to be adopted and implemented to address globally identified social problems. Within this line of inquiry, scholars have mapped the role of elite expert groups in identifying global problems (Dezalay and Garth Reference Dezalay and Garth2002; Halliday and Shaffer Reference Halliday and Shaffer2015; Shaffer and Aaronson Reference Shaffer and Aaronson2020), designing legal and regulatory solutions to address them (Dezalay and Garth Reference Dezalay and Garth2002; Lloyd and Simmons Reference Lloyd and Simmons2015), and transferring these solutions to local sites where they are adopted and implemented as part of the national laws and institutional arrangements (Hammerslev Reference Hammerslev2011; Vecchioli Reference Vecchioli2011; Berger Reference Berger2017; Simion Reference Simion2021). Since the line of preliminary inquiry in transnational law scholarship is concerned with the construction of global norms and how they have or have not established order and stability in the local setting, authors in this field have taken mostly a “top-down” approach. As a result, they examine the diffusion of global governance structures and how global institutions (and the actors within those institutions) transfer regulatory norms and arrangements to the local context. Consequently, this strand of scholarship also largely overlooks the process of adoption and implementation of new regulatory arrangements at the local level.
As Toby Goldbach (Reference Goldbach2019, 584) observes, examinations of the cross-border movement of law, legal institutions, or legal systems have been mostly anaemic (with a few exceptions) in investigating the politics of power implicit in law reform work or analyzing the social (individual and group) factors, forces, and processes involved in the movement of law.Footnote 5 To remedy the gap, Goldbach argues that we need to undertake a different approach in examining the movement of law and how it influences legal change in a setting by: (1) studying the people involved in the movement of law; (2) paying attention to the power and politics of people who are involved; and (3) building empirically grounded, detailed accounts of how legal change occurs (594). Goldbach’s interventions highlight the importance of unpacking the process of legal transfers and the role of actors involved in the process. Thus, relying on Goldbach’s (Reference Goldbach2019) approach, I examine actors who have been involved in the transfer, adoption, and implementation of anti-corruption reforms in East Timor and how their interests and politics have shaped the regulatory arrangements that were eventually adopted in the country.
By focusing on the agents of legal change, my approach differs from traditional analyses by comparative law scholars who examine the “differences” and “similarities” between the rules and institutional arrangements of different societies and how to carry out legal reforms successfully (Siems Reference Siems2022). Instead, I emphasize the importance of studying what happens during the process of legal transfers across national borders by closely studying the experiences of the different actors who are involved, both internationally and locally, and who facilitate the adoption, implementation, and enforcement of new standards locally (for authors who take a similar approach, see also Dezalay and Garth Reference Dezalay and Garth2002; Carruthers and Halliday Reference Carruthers and Halliday2009; Berger Reference Berger2017; Simion Reference Simion2021). I examine what interests these different actors bring to the table, how their interests are pursued through the project of legal reforms, and how they influence the eventual regulatory arrangements adopted to address a social problem locally. The approach allows for the capture of what happens at the local sites where multiple international and local actors are involved in the process of legal transfer and where there is no uniform understanding of the ideal regulatory arrangements to address a global problem. Rather, what exists is “open-ended, contingent and fragile legalities that enable new complex terrains of political struggle” (Canfield, Dehm, and Fassi Reference Canfield, Dehm and Fassi2021).
Transnational legal reform initiatives involve a wide range of international and local actors who are part of the transfer and implementation of new laws and institutional arrangements to address the issue in a local setting. For instance, the adoption of the UNODC’s Convention against Corruption (UNCAC) has facilitated the involvement of multilateral and bilateral organizations and, through these organizations, the participation of development practitioners, lawyers, and judges as part of legal reform projects.Footnote 6 At the local sites, politicians, lawyers, judges, and civil society members play a significant role as “first-level” actors involved in adopting and implementing transferred regulatory arrangements. This first level of local actors includes those who have opportunities to negotiate and navigate the varied politics of transnational legal reforms and pave the way for the adoption of new laws and institutional arrangements. Depending on the sites where the transnational legal reform initiatives occur, the profiles and characteristics of these first-level local and international actors vary.
In East Timor, the involvement of the United Nations (UN) in the referendum processes in 1999 enabled different bilateral and multilateral partners to engage with the process of justice reforms locally. Timorese leaders, who led the resistance, also welcomed international partnerships and assistance as they strove for legitimacy for the young state and sought financial assistance to rebuild the nation. As for the international partners, multilateral organizations such as the European Union (EU), the UN, and the World Bank were involved; alongside them, bilateral partners from the United States, Australia, Norway, South Korea, Japan, Portugal, Brazil, and Cape Verde were also prominent in the justice sector. I examine the role of international development practitioners, international and Timorese legal professionals, Timorese political figures, and civil society members who were at the forefront in shaping what laws and institutional arrangements were adopted as part of anti-corruption reforms, and I focus on the outcomes that emerged from the involvement of multiple parties with differing viewpoints. Even though the methodological intervention proposed here may not be original, by using qualitative data, I demonstrate the plural approaches among the different actors who were involved in anti-corruption reforms in East Timor and how they entered a compromise to address the issue locally. Thus, using qualitative data, I show another possibility of the reception of transnationally led legal reform initiatives where multiple parties are involved.
To describe the encounter between different sets of international and local actors, I have relied on the term “translocal.”Footnote 7 My use of the term “translocal” builds on the conceptualization by Matthew Canfield, Julia Dehm, and Marisa Fassi (Reference Canfield, Dehm and Fassi2021), where translocality is a frame to understand “the mobility, peoples’ embeddedness while being mobile, and how mobile and immobile actors (re-)produce connectedness and thereby reshape places” (340, quoting Porst and Sakdapolrak Reference Porst and Sakdapolrak2017, 112). I use “translocal” to describe the international-local encounters for a variety of reasons. First, “translocal” captures the diversity of actors—local and international—and their expertise, resources, and aspirations that are funnelled to a local site as part of the broad transnational initiatives. Second, it captures the plurality of the normative attitudes and regulatory approaches in transnational engagements. Third, “translocal” reveals, as Canfield, Dehm, and Fassi (Reference Canfield, Dehm and Fassi2021) argue, how encounters between different legal actors, discourses, and practices produce not a uniform field of law but, rather, multiple normative orders and rival authorities across multiple scales. Thus, by focusing on the grounded locations that the mediating international and local actors encounter, I study how their everyday practices, discourses, subjectivities, and politics shape the transfer and adoption of new regulatory arrangements to address a social problem that has been identified at the global level.
Advancing these arguments, I aim to show first that, contrary to the findings that highlight the homogenization of regulatory arrangements due to transnational networks (Slaughter Reference Slaughter1999; Boyle and Meyer Reference Boyle and Meyer2002; Kingsbury, Krisch and Stewart Reference Kingsbury, Krisch and Stewart2005; Roht-Arriaza Reference Roht-Arriaza2005), East Timor’s experience of adopting anti-corruption reforms demonstrates the existence of plural legalities that are reflected in the adopted compromised regulatory arrangements to address the issue. Second, transnational reform processes are often described as “imposing” initiatives where international actors transfer laws and institutional arrangements without accommodating local interests (Tamanaha Reference Tamanaha1995, Reference Tamanaha2011). I argue that, in certain contexts, local actors can also be very much involved in the adoption of new regulatory arrangements in the country (see also Carruthers and Halliday Reference Carruthers and Halliday2009; Dezalay and Garth Reference Dezalay and Garth2019). In East Timor, different groups of international actors worked closely with powerful local elites, who were crucial to enabling legal reforms locally. Furthermore, the findings on transnational legal reform initiatives in East Timor can illuminate what happens when multiple international partners are involved in a legal reform project and where there are powerful local actors. The case study allows us to capture when translocal compromises occur, who is part of such compromises, and how such concessions and settlements among different parties influence the limits of the regulatory arrangements that are eventually adopted.
To further my arguments, I rely on insights from regulation scholars who have mapped the dynamics among the people involved in the process of legal change and its adoption to understand the possibilities and limits of transnational engagements (Braithwaite and Drahos Reference Braithwaite and Drahos2000; Alter and Meunier Reference Alter and Meunier2006; Carruthers and Halliday Reference Carruthers and Halliday2009; Block-Lieb and Halliday Reference Block-Lieb and Halliday2017). Unpacking the dynamics between different actors shows how all transferred regulatory arrangements or aspirations may not be adopted outright or are rejected because they are foreign and new. Rather, another possibility can emerge when international-local actors with differing approaches to addressing a social problem meet at the local level. By pursuing this line of inquiry and situating my focus on the local sites where transnational legal reform initiatives are taken, this article advances calls by Mark Goodale and Sally Engle Merry (Reference Goodale and Engle Merry2007), Bruce Carruthers and Terence Halliday (Reference Carruthers and Halliday2009), and Gregory Shaffer and Ely Aaronson (Reference Shaffer and Aaronson2020) for more locally situated accounts of transnational legal transfers.
The arguments pursued also add to the scholarship on justice sector reforms in East (Strohmeyer Reference Strohmeyer2001; Grenfell Reference Grenfell2013; Nixon Reference Nixon2013; Kent Reference Kent2018). I demonstrate the compromises between the international and local partners in the legal reform process. By doing so, my findings depart from those of scholars who have examined international engagements in East Timor during the initial phase of state building (Grenfell Reference Grenfell2013; Nixon Reference Nixon2013; Nicholson and Hinderling Reference Nicholson, Hinderling, May and Winchester2018). For instance, Pip Nicholson and Samantha Hinderling (Reference Nicholson, Hinderling, May and Winchester2018) and Laura Grenfell (Reference Grenfell2013) argue that international partners who were involved in justice sector reform initiatives took a “top-down” approach to appointing international judges to hear domestic cases; they overlooked traditional norms and regulatory practices by imposing rational bureaucratic notions of law and processes in the country. These authors focus on legal reforms that were taken immediately after the re-declaration of independence in the country when the UN transitional administration was in charge. However, once the Timorese leaders undertook their political positions, they were able to influence the reforms introduced in the country.
Subsequent qualitative research on the involvement of international donor engagements in the country throws light on the collaborative engagements between international and local partners (Reheem Shaila Reference Reheem Shaila2019, Reference Reheem Shaila2023; Swenson Reference Swenson2022) and shows how cross negotiations and settlements were part of the process of transnational legal reforms in the country.Footnote 8 Such a shift in the local-international interactions seems to have been the result of two political events: civil unrest in 2006, for which international partners’ policies were blamed (Engel Reference Engel2020), and the 2014 impasse between the Portuguese judges and the elite resistance leaders, which led to the National Parliament terminating the work visas of the international advisers in the judiciary (JSMP 2014; Reheem Shaila Reference Reheem Shaila2023). The arguments pursued in this article further the findings of such collaborative engagements between international and local actors in pursuing legal change in the country.
The article develops in the following way: the second section describes compromise as another possible outcome of legal transfers and adds to the existing typologies on the adoption of legal transfers. This section distinguishes compromised adoption from other possibilities, such as full adoption, selective/partial adoption, and rejection of the legal transfers. The third section describes the methods used for data collection, and the fourth section delves into the plural approaches to tackling corruption supported by different groups of international and local stakeholders in East Timor. The fifth section describes the anti-corruption reforms adopted in the country and explains the limits and possibilities of the newly adopted anti-corruption framework. The sixth section concludes.
Compromises and legal transfers
The scholarship on legal transfers provides us with abundant typologies to understand what happens when internationals take new regulatory arrangements to the local level. Scholars have theorized why societies adopt new laws and institutions (Merryman Reference Merryman1981; Zimmermann Reference Zimmermann1994; Ajani Reference Ajani1995, Reference Ajani and David2007), the different ways in which transferred laws are adopted (Potter Reference Potter1994, Reference Potter2004; Antons Reference Antons2003, Reference Antons2007; Harding, Antons, and Gessner Reference Antons and Gessner2007; Carruthers and Halliday Reference Carruthers and Halliday2009; Glenn Reference Glenn2014), and how external factors influence the trajectory of adoption and adaptation (Merryman Reference Merryman1981; Nelken and Feest Reference Nelken and Feest2001). Focusing on the “reception” of transferred laws and institutional arrangements, comparative law scholars identify three main outcomes resulting from transnational legal transfer initiatives: full adoption (Watson Reference Watson1974, Reference Watson1993; Ajani Reference Ajani1995; Berkowitz, Pistor, and Richard Reference Berkowitz, Pistor and Richard2003), selective adoption (Potter Reference Potter2004, Reference Potter2009; Wang Reference Wang2013; Kien, Ho Pham and Lu Nguyen Reference Kien, Ho Pham and Lu Nguyen2019), and rejection (Glenn Reference Glenn2014). These typologies emerge from observing the “similarities” and “differences” between legal and institutional arrangements that are transferred and adopted locally. Consequently, they do not assist in understanding how people at the “first level” influence the outcomes of legal transfers.
Carruthers and Halliday (Reference Carruthers and Halliday2009) remedy this gap by focusing on the interactions between the actors who are part of transnational legal transfers and adoption, and, since their approach is closer to what I propose here, their typology is also the most valuable for my argument. Carruthers and Halliday observe that the diffusion of specific regulatory arrangements from global to local contexts is a negotiated process. At the adoption stage, the authors identify four possible outcomes that can emerge depending on the interactions between the international transferors and the local recipient intermediaries: (1) acceptance, where a transferred script is adopted fully without reservations; (2) adaptation as replication, when a global script is translated into a local form without a fundamental change in the primary goals or mission; (3) adaptation as hybridization where there is a merger of global frames, goals, and mission, with local forms but in ways that cannot be reduced either to the global or the local; and (4) rejection where the intermediaries fail to convince either of the parties in the global/local encounter to pursue or not pursue a reform (302).
In Halliday and Carruthers’s study, the International Monetary Fund and the World Bank emerge as the dominant partners with their technical and economic capital. They also had the upper hand in deciding the outcomes of legal transfers in the domestic context. However, the landscape of contemporary transnational legal transfers is much more diverse. Various bilateral and multilateral organizations, international NGOs, and even faith organizations are involved in legal transfer initiatives. Depending on the issue area, they can bring varying regulatory approaches to address a transnational issue at the local level (Zumbansen Reference Zumbansen2010; Heupel Reference Heupel, Zurn, Nollkaemper and Peerenboom2012; Schimmelfennig Reference Schimmelfennig, Zurn, Nollkaemper and Peerenboom2012; Darian-Smith Reference Darian-Smith2013; Ivory Reference Ivory, Shaffer and Aaronson2020). For example, while multilateral institutions such as the UN and the EU approach corruption as mostly a public governance issue, Transparency International, which is one of the core international NGOs working on anti-corruption, takes a broader normative approach by identifying the mismanagement of money both in the private and public sphere as corruption. In areas where transnational regulatory approaches remain flexible or unsettled, the chances of plural regulatory strategies to address the issue are higher (Merry Reference Merry2009; Halliday and Shaffer Reference Halliday and Shaffer2015).Footnote 9 Thus, as part of transnational legal transfers, different normative perspectives on how an issue is understood and addressed can reach local settings.
All of this means that gaining consensus at the local level over plural normative approaches and how to address an issue remains challenging. As more international actors are involved in legal reform initiatives, local stakeholders have much more scope for bargaining, negotiating with different groups, and choosing from a range of regulatory arrangements (Short Reference Short, Bignami and Zaring2016). Unlike settings where international partners can dictate reforms externally (Miller Reference Miller2003) and have more authority (Boyle, Songora, and Foss Reference Boyle, Songora and Foss2001), translocal compromises occur in places where the power and authority of the international partners are weak. They also occur in settings where the first level of local stakeholders holds considerable authority locally and can influence the legal field. As for local stakeholders, despite their reservations over the proposed reforms and their content, they may enter into compromises with international partners to gain broader international legitimacy or financial support or signal to the international community their alignment with certain international aspirations.
Where translocal compromises occur, the adopted regulatory measures are more likely to reflect the elements of plural approaches supported by the different parties. By choosing to compromise, the parties involved largely agree to find a middle ground in order to bring any form of regulatory change to address a transnational problem locally. Consequently, the resulting regulatory framework will not fully reflect the regulatory arrangements as they were initially envisioned by the international or local partners. Instead, it will be a combination of different legal and institutional arrangements that emerges from the negotiations among the first-level actors. Such compromises between the parties could potentially also restrict institutional mandates and the reach of law, and all these aspects will have to be evaluated empirically.
Research design and methods used for data collection
To understand the role of first-level actors and their involvement in shaping anti-corruption initiatives, I spent five months in East Timor in 2018. I collected data through field observations, semi-structured interviews with Timorese anti-corruption commissioners (four interviews), officials at the Ombudsman office (three individuals), civil society members working on anti-corruption (nine individuals), and lawyers (five individuals). International advisers who were involved in the justice sector reforms (six individuals) or used to be part of such initiatives (four individuals) also provided data for the research. Informal conversations with staff of the US Agency for International Development (USAID) (two individuals), who were the primary financial supporters of the Anti-Corruption Commission, also gave background information to situate the reforms. The data was collected as part of a broader project examining international-local efforts in rebuilding and strengthening the justice sector in the country.
Regarding the local actors, those who were prominent in shaping the legal field were the resistance leaders who had become political leaders in the new state (the “old generation”) and the Timorese graduates who grew up under the Indonesian regime in the country (the “in-between generation”) who had taken up senior roles within the government, judiciary, and the bureaucracy.Footnote 10 It was explained to me that the “old generation” included those people who were young when East Timor gained independence from Portugal. They grew up resisting the Indonesian military. Some left for Portugal and other Portuguese colonies (Mozambique and Angola) to support the resistance movement from abroad. Some stayed behind and joined forces with Xanana as guerrilla fighters (see Nygaard-Christensen Reference Nygaard-Christensen2012; Bexley Reference Bexley, Nygaard-Christensen and Bexley2017). Thus, the “old generation” comprised resistance fighters from the guerrilla front known as the “resistance front” and the “diplomatic front” (Nygaard-Christensen Reference Nygaard-Christensen2012).Footnote 11 They spoke Portuguese fluently, which was also used as the language of resistance, and had close ties with Portugal. They also insisted that Portuguese should be recognized alongside Tetum as a national language. The adoption of Portuguese as a national language allowed foreign lawyers, judges, and prosecutors who were proficient in the language to take up senior mentor and advisory roles in the National Parliament, courts, Office of the Public Prosecutor, and the Anti-Corruption Commission. As for the “in-between generation,” the group constituted of individuals who grew up under the Indonesian occupation and who went to universities in Jakarta. As students in Indonesian universities at the time, they supported the independence movement clandestinely (Bexley Reference Bexley, Nygaard-Christensen and Bexley2017). After the referendum, many who were associated with NGOs in Indonesia were recruited into the state institutions. They were given their roles as advisors, mentors, and senior officials to assist the “in-between generation” of Timorese counterparts who had a minimal grasp of the language and little work experience (Strohmeyer Reference Strohmeyer2001).
Many international partners were involved in legal reform initiatives in East Timor. The main groups involved in justice sector reforms were the Portuguese legal advisers through their bilateral assistance, the United Nations Development Program (UNDP), USAID, and the European Commission. Other donors, such as the Japan International Cooperation Agency and the Korea International Cooperation Agency (KOICA),Footnote 12 also funded and supported different aspects of corruption reforms. Among the different international partners, Portugal had the most substantial influence on the reforms in the core justice institutions. This was because, with the adoption of Portuguese as one of the national languages, all technical and formal correspondences were drafted in Portuguese since Tetum, the other official language, was not considered to be advanced enough (Taylor-Leech 2008, Reference Kaplan and Baldauf2013; Reheem Shaila Reference Reheem Shaila2023). Since most of the “in-between generation” were not proficient in the Tetum language, they relied on Portuguese advisers and mentors at the law department of the National University and the Legal Training Centre for training as well as on senior technical advisers and mentors at the courts, in the National Parliament, and at the Office of the Public Prosecutor for assisting with the everyday operation and application of law. Consequently, as a result, Portuguese legal trainers, judges, prosecutors, and lawyers played a significant role as transnational legal transferors in East Timor.Footnote 13 But, for the purposes of this article, I focus on the two main donors in the area: USAID and Portugal.
During the interviews, participants were asked about their role in the adoption of anti-corruption reforms, the challenges they faced while introducing new laws and institutional arrangements, and the operational and institutional difficulties they faced while applying the newly adopted regulatory framework. To examine the limits of the adopted anti-corruption institutions and laws in the country, I studied a controversial corruption case that involved a senior minister who was described as having close alliances with the “old generation” to contextualize the continuing influence of resistance leaders on corruption cases and anti-corruption institutions. I also analyzed secondary research from the Judicial System Monitoring Programme (JSMP), a Timorese NGO focusing on judicial developments in the country, to understand the politics of using parliamentary immunity laws by the leaders to shield individuals from prosecution on corruption charges.
Plural approaches to tackling corruption in East Timor
At the international level, the UNCAC is the core international document that recognizes corruption as a global problem demanding a global response. As of 18 November 2021, 189 countries had ratified the UNCAC, and the signatories had pledged to address corruption within and beyond their national borders. Even though there has been a global consensus in recognizing corruption as a social problem that affects societies globally, there is little agreement on defining what acts are considered corrupt and the best ways to regulate the issue locally. The UNCAC urges member states to adopt measures to prevent corruption (Chapter II), criminalize corruption (Chapter III), and support other member states in their fight against corruption (Chapter IV).
The UNCAC does not provide precise definitions of what constitutes corruption or how the problem can be regulated. Instead, the drafters recognize that corruption plays out in unique and distinct ways and that its elements, consequences, and contributing factors must be unpacked empirically (UNODC 2003, 23). Accordingly, the UNCAC states that “[t]he purpose is not necessarily to propose that specific elements be criminalised, although this may often be the conclusion of governments, but to identify acts which fall within the range of conduct described as ‘corrupt,’ and which are intrinsically harmful to individuals or societies to the extent that efforts to prevent, combat or control them using criminal justice policies or other measures may be called for” (23). Thus, instead of defining corruption, the UNCAC identifies some of the ways in which the phenomenon manifests in a society: grand and petty corruption; active and passive corruption; bribery, embezzlement, theft, and fraud; extortion, abuse of discretion, favoritism, nepotism, and clientelism; conduct creating or exploiting conflicting interests; and improper political contributions (to list a few examples). As for transnational efforts to address corruption, the UNCAC defers to national governments to determine what works within their context, and it encourages international actors to work alongside local governments in assisting other countries to address the problem. It is also this ambiguity that has enabled the adoption of the UNCAC at the international level and has allowed for a wide scope of engagement by international actors on anti-corruption reforms locally (Johnston Reference Johnston2012).
While no coherent approach exists among the different international actors involved in anti-corruption reforms, we can observe some broad patterns of the regulatory frameworks they have supported as part of anti-corruption missions (Delaney Reference Delaney2006; Chêne Reference Chêne2008; Zaum Taxell, and Johnsøn Reference Zaum, Taxell and Johnson2012; Johnsøn Reference Johnsøn2016a, Reference Johnsøn2016c). As Jakob Svensson (Reference Svensson2005) notes, internationally led anti-corruption reforms have mainly focused on government corruption in the public sphere. The emphasis has been on public officials and how they carry out their official roles.Footnote 14 Regarding regulatory models to address corruption, there is far less coherence in the projects supported by international donors (Chêne Reference Chêne2008). Their approaches to regulating corruption can be broadly categorized as interventions with a focus on punishment, prevention, and inculcating values (Chêne Reference Chêne2008). Depending on the extent of donor commitment, some donors contribute support across the different areas listed. Bilateral donors may also draw on the expertise of their staff and promote laws and institutional arrangements that mirror regulatory arrangements in the donor nation. As a result, anti-corruption reforms by international actors take different forms and focuses. For instance, the EU and the European Commission have a long legacy of supporting the Office of Ombudsman in post-Soviet states (Carl Reference Carl, Hertogh and Kirkham2018), whereas USAID, a bilateral donor, follows a different format to address corruption. USAID initiatives have focused on engineering institutional arrangements that allow for independent investigation and enforcement of corruption issues (USAID 2022, 2024). USAID also emphasizes societal reform to change societal and political attitudes toward corruption (Hutchinson Reference Hutchinson2005, 8; USAID 2024).
At the local sites where anti-corruption reforms are taken, the challenges are different. Normative positions on what constitutes corruption and tolerance to the issue vary from one society to another (for Senegal, see Blundo Reference Blundo2006; for Bolivia, see Goldstein Reference Goldstein2003; for Albania, see Dalakoglou Reference Dalakoglou2010; for South Africa, see Hoag Reference Hoag2010; for China, see Hsu Reference Hsu2001; for Taiwan, see Simon Reference Simon2010; see Pardo Reference Pardo2004; Torsello Reference Torsello2016). For example, corruption by public officials may not even be labelled an illegal act in some societies as such transgressions may be seen as a necessary transaction for getting things done (De Sardan Reference De Sardan1999; Torsello Reference Torsello2016). Corruption may also serve different purposes based on the type of society (Flanary, Moran, and Williams Reference Flanary, Moran and Williams2000; Theobald and Williams Reference Theobald and Williams2000). In countries emerging from conflict, corruption may be instrumental in buying peace with potential spoilers and maintaining stability (Cheng and Zaum Reference Cheng, Zaum, Zaum and Cheng2012). This could involve giving senior positions of power to old combatants, favoring them over other eligible competitors during public procurement tender processes or diverting public money in the form of government schemes, or giving away senior political positions so they too can benefit from the spoils of the war (Zaum and Cheng Reference Zaum and Cheng2011; Hersant Reference Hersant2017).
In East Timor, the divergences in approaches between first-level international and “local”Footnote 15 actors can be mapped in relation to normative understandings of what constitutes corruption and how it must be regulated. The issue of what constitutes a corrupt act can be understood through examples identified by the interviewees, surveys conducted by NGOs such as the Asia Foundation and USAID, and reports from Transparency International. In the USAID initial assessment document on corruption, the authors highlight the issue as “poor grasp of anticorruption concepts” by key actors (USAID 2009, vii). While petty corruption was not a systemic issue in the country, there were unsubstantiated grand acts of abuse of power by those in political roles in the government that were of critical concern. Common examples that were highlighted to describe the issue included the misallocation of budgets (Transparency International 2015),Footnote 16 followed by issuing procurement contracts and tenders to close family members (Transparency International 2015, 5), and the excessive purchase of vehicles by senior members of the National Parliament.Footnote 17
Transparency International (2015, 4) also includes in this list the issue of government increases to budget limits without giving substantiated or transparent explanations. For instance, in 2012, the state budget was increased by 245 percent compared to 2006. The increased budget is often marked as “special funds” in which the executive has the discretion to move money for infrastructure projects and other projects not identified in the official budget documents (Global Integrity 2013; Transparency International 2015, 5). Transparency International adds that, even though the period coincided with a general decrease in global prices for oil (East Timor’s main source of income is oil reserves), the government in power at the time failed to provide information on its expenditures for individual programs, actual spending and revenues for the year prior to the budget year, extra budgetary funds, transfers to public corporations, quasi-fiscal activities, earmarked revenues, financial and non-financial assets, and the percentage of the budget devoted to secret items (Transparency International 2015, 4). All such instances where a public official exercises their discretionary power to benefit themselves or those close to them fall within the ambit of the corruption problem, as identified by the UNCAC.
During interviews with Timorese lawyers, anti-corruption officials, and judicial trainees, they pointed out that budget misallocation happens for two reasons. First, a senior public official spends the allocated money for public purposes but may allocate the funds in ways that are not approved.Footnote 18 The second instance, which is much more broadly reported,Footnote 19 involves senior officials offering public tenders to resistance fighters and their families. With regard to tenders provided to those who were part of the resistance movement and their families, one lawyer contextualized the issue in the following way:
I have an example of this—the electrification project. If you look at who has gotten the contracts, it is mainly veterans owning different streets as part of the electrification project. This way, everyone got a piece of the pie, and they shared the benefits. Those benefitting from such opportunities think it is their right to benefit from their position as veterans for their efforts during the resistance struggle.Footnote 20
The preference given to resistance fighters, in particular, can be understood as a “selling peace” policy to maintain peace and stability (Cheng and Zaum Reference Cheng, Zaum, Zaum and Cheng2012). This is because, once the country regained its independence and began internationally led state-building initiatives, those who fought during the conflict were given no opportunities to be part of the new state machinery. The resistance fighters were excluded because of their lack of professional degrees and experience to take positions within the state institutions. Compared to the resistance fighters, those who had been in exile and were from the “in-between generation” who grew up under Indonesian rule benefited greatly from the new opportunities. Timorese citizens who were living in exile during the Indonesian occupation had continued their professional careers in Portugal, Angola, and Mozambique. Once the country regained independence, they returned to take key positions in the new state.Footnote 21 Those from the “in-between generation” had opportunities to pursue higher education in Indonesian colleges as part of the Indonesian government’s scholarship programs, and when the UN transitional administration undertook its mass recruitment drive immediately following independence, they were appointed as government officials, prosecutors, public defenders, and judges. Thus, this latter set of actors was better positioned to reap the peacetime dividends.
To maintain peace and recognize the efforts of individuals who had contributed significantly to the independence struggle, the old generation of resistance leaders allowed (informally mostly) preferential treatment for those who had fought during the resistance struggle. Such digressions manifested in the form of preferential treatment for resistance fighters and their families over other candidates during tendering processes (Tempo Semanal 2012; Benner Reference Benner2013; La’o Hamutuk Reference Hamutuk2013b, Reference Hamutuk2014) and special benefit programs targeting former combatants (Crisis Group Asia Briefing 2011; Roll Reference Roll2018a, Reference Roll2018b). Under the UNCAC, such instances fall within the deviated use of public office. However, they were not perceived as illegal by the key resistance leaders but, rather, as a necessity “for creating unity and cohesion, and promoting reconciliation in the country” (Gusmao Reference Gusmao2009, 4).Footnote 22 Instead, they defended their positions, pointing out the distinct contributions and sacrifices that the resistance fighters had made to win Timorese independence. As a result, if the resistance fighters gained from being favorably treated during a public tender process or targeted for specific government benefit programs, it was argued to be inevitable and an obligation of the Timorese people to the fighters who had fought for their independence.Footnote 23
In terms of regulating corruption in the country, international partners were involved in introducing three institutional avenues: the Office of the Public Prosecutor, the Ombudsman for Human Rights and Justice (Ombudsman Office), and the Anti-Corruption Commission. Each of these avenues had the support of different international partners. Following the survey carried out by the Asia Foundation, USAID proposed separate pieces of anti-corruption legislation and a commission to investigate and prosecute corruption allegations. The proposal was to develop the capacity of the government officials to “deter, detect and sanction corruption” (USAID, n.d.b).Footnote 24 However, the proposal was initially met with resistance from the Timorese leaders and the Portuguese technical advisers as they had influenced the Timorese parliamentarians into adopting similar laws,Footnote 25 and institutional arrangements between the executive, legislature, and judiciary, as in Portugal. While the Timorese leaders were skeptical about a separate institution focused solely on corruption and specialized legislation targeting the same, the Portuguese partners resisted the proposal because it misaligned with the broader institutional structure and division of powers among the justice institutions initially designed following 2002.Footnote 26
For example, the division of power between different judicial authorities followed a similar structure to that of the Portuguese judiciary. Following the Portuguese institutional model,Footnote 27 the Office of the Public Prosecutor had the central role in initiating investigations and filing cases on crime to the relevant court. The newly adopted Penal Code also copied the Portuguese Penal Code and included provisions that addressed corruption.Footnote 28 The code identified crimes committed during the performance of public functions (Articles 292–302), passive corruption (Articles 292 and 293), active corruption (Article 294), embezzlement and the misuse of public material resources and facilities (Article 295), and the abuse of power and financial participation in public affairs (Article 299). In addition to the above, the Penal Code also identifies the mismanagement of public funds (Article 319). Thus, for the Portuguese technical advisers in Parliament, having an independent anti-corruption commission that was separate from the Office of the Public Prosecutor threatened the latter office as it was designed to have the primary role in initiating, investigating, and prosecuting criminal charges such as corruption cases.Footnote 29 The technical advisors were also against separate legislation on anti-corruption as they saw it as overlapping with the provisions of the newly adopted Penal Code.
The proposal for an independent anti-corruption commission also overlapped with the Office of the Provedor for Human Rights and Justice, which was instituted according to Article 27 of the Constitution. The Office of the Provedor was established with the support of multiple international partners in 2005 (Nicolau Reference Nicolau2007).Footnote 30 Some interviewees reported that experts from the European Commission supporting the initiative had a significant role in promoting the work of the Ombudsman Office, although no official records exist of this activity.Footnote 31 Initially, the Ombudsman Office was established to promote and protect human rights in the country, with a mandate to generate awareness among the citizens and improve public authorities’ compliance with human rights obligations. Soon, monitoring and regulating maladministration in public offices was also included within the office’s mandate, based on the advice of a working group including experts, jurists, UN personnel, donor officials, and local and international NGOs. Accordingly, the Ombudsman Office was given the powers to deal with complaints of corrupt activities by investigating and providing necessary guidance to government departments. Thus, the Ombudsman Office was conceptualized as an oversight institution that would monitor and bring government officials to account when there was a violation of human rights or a breach of good governance practices (Nicolau Reference Nicolau2007).
These institutional arrangements, which were promoted and supported by various international partners, were distinct and overlapped in how they aimed to regulate corruption. The structure and mandate of the Office of the Provedor and the proposed Anti-Corruption Commission were similar. They were expected to work independently and separately from other core justice institutions. They also had a mandate to generate public awareness about corruption and provide opportunities for citizens to initiate complaints of their own accord. But the initial USAID proposal for the Anti-Corruption Commission was that it would also function as an independent body with investigatory and prosecutorial powers. The Office of the Public Prosecutor was also envisaged as an independent body from the judiciary and executive but with the highest power in pursuing criminal justice. Thus, all three institutional arrangements for regulating corruption were conceptualized to be independent of executive and judicial influence. However, the scope of their mandates varied. Perhaps, the Office of the Public Prosecutor had the strictest and most limited role in prosecuting and investigating corruption charges. The Ombudsman Office took an oversight and awareness-generating role, and the Anti-Corruption Commission had investigatory, prosecutorial, and awareness-generating roles. The proposed Anti-Corruption Commission and the Office of the Public Prosecutor aimed to address the issues by criminalizing corruption, which meant that, once an official was convicted, they either had to undergo imprisonment or pay fines depending on the gravity of their crime. The Ombudsman Office was meant to address the issue through a softer approach by sending reports to specific public authorities guiding them on good governance practices and how to avoid future violations.Footnote 32
Thus, in East Timor, differences in normative and regulatory approaches to addressing corruption played out at different levels. While the international actors involved in the anti-corruption reforms were aligned on the liberal regulatory model of addressing the problem, whereby the regulators and their political superiors were accountable and their actions were limited by rational legal rules, the local political elite leaned toward a regulatory model based on tradition (Weitzman Reference Weitzman1974; Vincent Reference Vincent2008; Van Camp Reference Van Camp2014) and reverence (McCormick Reference McCormick1990; Jayasuriya Reference Jayasuriya, Beeson, Jayasuriya, Kim and Robison2003). The old generation leaders were drawn to a system of governance that recognized their sacrifices for the country and granted them immunity.Footnote 33 Despite their consensus on their liberal regulatory approach to address corruption in the country, the international partners diverged in their positions on how the issue of corruption ought to be tackled locally. However, they have successfully managed to collaborate and engage with local stakeholders, enabling an environment for continuous engagements.Footnote 34 In the following section, I examine how the international and local actors navigated these plural approaches and compromised on the adopted regulatory arrangements to address corruption in the country. I also show that these translocal compromises influenced the legal and institutional arrangements adopted in the country and how they were used to tackle corruption locally.
A compromised regulation of corruption in East Timor
In 2009, when the proposal for an Anti-Corruption Commission and separate legislation on anti-corruption was tabled in the National Parliament, the motion was mainly met with resistance.Footnote 35 The Anti-Corruption Commission was designed to be an independent body that would investigate corruption charges suo motu (action taken of its own accord) and monitor anti-corruption initiatives locally. But the Portuguese technical advisers in the National Parliament and the Office of the Public Prosecutor rejected the proposal as it was perceived to diverge from the institutional arrangements introduced in the country following independence.Footnote 36 One of the interviewees (an ex-international adviser in the Timorese Parliament) observed that the conflict between the Portuguese camp and what was perceived as the adversarial model of the Anglo-American camp translated into dismissals of amendment requests to the statute of the Anti-Corruption Commission. Consequently, a compromise was reached whereby the commissioners in the Anti-Corruption Commission could initiate investigations only after receiving a referral from the Office of the Public Prosecutor, which, according to the interviewee, “left the commission with no teeth.”Footnote 37
Once the statute for the Anti-Corruption Commission was adopted in Parliament, it became apparent that the commission’s mandate overlapped with the Ombudsman Office in ensuring good governance practices and tackling corruption in the public sector. The statute that was passed identified the commission’s mandate as “an independent and specialised criminal body to investigate” corruption as well as with the powers to undertake preventive action and criminal investigation when there is passive or active corruption, abuse of power, embezzlement, misuse of public material or resources, or financial participation in public affairs.Footnote 38 The latter’s mandate especially overlapped with the Ombudsman Office’s mandate. For example, if the Ombudsman Office received any complaints, an ombudsman could investigate the issue further. If there was any cause for concern, the ombudsman made a report and a guidance document for further action by the authorities. But the overlap between the Ombudsman Office and the Anti-Corruption Commission resulted in confusion as to the roles the different institutions held and when they were to intervene to prevent abuse. One of the public officials in the Ombudsman Office explained that the provision was not thoroughly examined during the enactment as the focus was on ensuring a clear division of powers between the Office of the Public Prosecutor and the proposed Anti-Corruption Commission.Footnote 39 Further, the absence of international partners who initially backed the Ombudsman Office in the National Parliament during the institution of the Anti-Corruption Commission contributed to the error.Footnote 40 In 2009, an amendment process was initiated, and the powers of the ombudsman were restricted to monitoring roles, while the anti-corruption commissioners were given investigatory roles.
Regarding the “old generation” leaders, even though they were not directly involved in deciding the different institutional arrangements, they were able to influence its scope and limitations. In the National Parliament, they dragged their feet on the adoption of separate legislation that would tighten measures on the investigation, prosecution, and enforcement of corruption cases (La’o Hamutuk Reference Hamutuk2011). Having Portuguese advisors on their side, albeit for different reasons, further led the Timorese leaders to stall the enactment of legislation on anti-corruption. They also ensured that the National Parliament had the authority to choose senior officials in the Anti-Corruption Commission (Government of Timor Leste 2010). The Prosecutor General was already a political appointment.Footnote 41 These measures ensured that the institutions that were proposed to be independent of the executive initially now had channels through which the “old generation” leaders could exert their influence through overt and covert ways.
In addition, in 2009, when the Anti-Corruption Commission was instituted, the National Parliament drafted the new Rules of Procedure for its members (Democratic Republic of East Timor 2009). Under Article 8 of the Rules of Procedure, the Parliament drafted new rules on immunity, whereby the members of the Parliament are allowed immunity in the event of criminal proceedings, provided that the National Parliament decides not to suspend the members for crimes punishable by imprisonment exceeding five years (Article 8.3). The new immunity rules contradicted Article 113 (on criminal liability of the members of government) and Article 114 of the Timorese Constitution (on immunities for members of government), which sets out that immunity privileges should not extend to members who are charged with criminal offences punishable with a sentence for imprisonment of more than two years.Footnote 42 Despite the inconsistency in 2009, the government in charge adopted the immunity rules, allowing for the possible protection of members from criminal charges punishable with a sentence for more than two years. One could observe that the new rules on immunity were passed as a way to circumvent the potential prosecution of ministers for their corruption. The Penal Code sets the punishment for corruption between three to fifteen years, and the new immunity rule allowed the National Parliament to step in whenever a member is accused of corruption and the Parliament wanted to provide them immunity. Even though no official records indicate the international partners’ knowledge or acceptance of the new immunity rule, it is unlikely that such legislation would have gone unnoticed by the international technical advisers appointed to the National Parliament at the time. In terms of enforcement, these compromised regulatory arrangements limited the cases that were investigated, prosecuted, and eventually enforced in the country.
For investigations, following the compromised mandate of the Anti-Corruption Commission, the commission cannot initiate investigations on its own; rather, it must wait for a referral from the Office of the Public Prosecutor. One of the deputy commissioners at the commission explained this limitation in the following way. To strike a balance without encroaching too much on the Office of the Public Prosecutor’s mandate, the statute on the institution of the Anti-Corruption Commission allows it to tackle corruption cases in only two ways:
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1. it can wait for the Office of the Public Prosecutor to send a request for investigation to the commission (identified by the statute) or
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2. the Anti-Corruption Commission can gather and analyze information if someone has filed a complaint directly with the commissioner.Footnote 43
In the first instance, the Anti-Corruption Commission helps the Office of the Public Prosecutor to prepare essential documents and evidence to help build a strong case for the prosecution. In the second instance, when a complaint is directly lodged with the Anti-Corruption Commission, the commissioners can conduct an initial analysis (without using wiretapping on suspects or examining bank accounts or tax records) to establish if there are grounds to believe a complaint is genuine. The commissioners can further send the complaint to the Office of the Public Prosecutor to initiate charges. If the prosecutors agree with the commissioners that the case has grounds, the Office of the Public Prosecutor can dispatch an order to the commissioners to initiate official investigations. As a result, when and how the anti-corruption commissioners can intervene in corruption cases is tied to those instances that pass the threshold set by the Office of the Public Prosecutor.Footnote 44 But this all depends on whether the senior prosecutor in charge, who is a political appointee, would even want to initiate an investigation.Footnote 45
Then, there are issues concerning the gathering of evidence for the cases. One of the interview participants observed that allowing senior political figures to decide who can take the senior positions in key anti-corruption institutions has influenced which allegations on corruption are investigated and prosecuted. The participant added that most of the staff members who are part of the three institutions are either party supporters of the Revolutionary Front for an Independent East Timor (FRETILIN) (Mari Alkatiri’s party) or the National Congress for Timorese Reconstruction (CNRT) (Kay Rala Xanana Gusmao’s party) and are appointed through political affiliations.Footnote 46 According to the official, this translates into difficulties finding evidence when a high-profile case involves someone closer to the resistance leaders or a veteran.Footnote 47 Some Timorese government officials referred to this as the “missing file, apologetic staff” conundrum, which was contextualized by an anti-corruption commissioner who observed that the excuse of “missing files” was the most common excuse heard by investigating officials.
The deputy commissioners at the Anti-Corruption Commission observed that staff in the government offices often gave a range of excuses during the investigation—from not finding essential files to admitting that they were inexperienced.Footnote 48 One of the ex-Timorese anti-corruption officials pointed out that the patronage system remains a channel for many Timorese to get a government job, and many also have close political affiliations that fall either within the CNRT or the FRETILIN camp. This means that, sometimes when a case against a senior member of a political party arises, it is hard to trace the files. The commissioner pointed out that, sometimes when a senior government official is transferred, all the files are taken with him, or it could be genuine that files cannot be traced “as the culture of file-keeping” is weak in the country.Footnote 49 If the cases are investigated, then the next potential challenge arises at the adjudication level (JSMP 2012).
If the Anti-Corruption Commission is successful at investigating a corruption charge, the prosecution can build a viable case that leads to a successful conviction, but even if there has been no parliamentary immunity given to the accused, it is still possible that they may escape punishment. One of the high-profile cases involving a minister from the “old generation,” Emilia Pires, is helpful for observing how the old generation leaders can influence the enforcement of judicial decisions. Pires was an ex-finance minister, who had close relations with the old generation of leaders, especially Gusmao. When Pires was convicted for corruption, Gusmao immediately retaliated against her conviction and published an open letter addressed to Pires (Observador 2017). Using his flair for poetic language and criticizing the court for its decision, Gusmao accused the president of the Court of Appeal and the prosecutor general of financial irregularities in their offices. He criticized them for convicting Pires, who, despite her ill health, returned from Portugal to rebuild the Timorese state following the referendum. In the letter, Gusmao recalled his friendship with Pires, which began when he was detained in Jakarta’s Salemba prison house and how she had assisted him during that time. Gusmao suggested that he found the court decision against Pires “deplorable” for causing her stress at a time when she was suffering from a severe illness. Gusmao added that, in her role as the minister of finance, Pires had transformed the public administration and finance departments by modernizing the institutions and introducing a public finance system. According to him, “[t]he State of Timor-Leste owes a lot to [Pires] … you, who with unusual honesty, worked towards strengthening its institutions and law … therefore, I cannot accept that you have committed a crime of corruption that has harmed the State (Observador 2017; translated from Portuguese with the assistance of a research assistant).
The final judgment against Pires was never enforced as she was issued a pardon by the president (Jose Ramos Horta) and prime minister (Gusmao) at the time (Agência Noticiosa de Timor-Leste 2023). The prosecution of Pires, in particular, was an anomaly compared to other high-profile instances. The case against her was initiated at a time when international advisers in their roles were proactive in restricting executive power. However, such actions were soon met with retaliation by Gusmao’s government, which was then in power. An example is the termination of work visas of international advisers in key judicial institutions by the National Parliament after the justices wrote a judgment challenging the legality of the national budget in 2014.Footnote 50
The application of regulatory measures to address corruption in East Timor remains narrow. International actors also have recognized this; however, they emphasize why they need to compromise to have access for continued engagement in the justice sector.Footnote 51 In East Timor, the choice to compromise among the parties may not have occurred organically but, rather, out of necessity. Without the support of the local elite leaders, it was impossible for the international partners to have a channel for engagement. However, with time, as more young people from the new generation are taking government positions, the influence of the elite leaders is waning. In a political environment where the influence of different actors is in flux, compromise is the only way forward for constructive engagement. International actors have observed that unofficial compromises as a strategy is necessary, especially for a state that is fragile and emerging from conflict, in order to allow them to buy time to collaborate with those from the “in-between generation” and to develop a broad awareness of the corruption among public and government officials.Footnote 52
Consequently, instead of focusing on transferring “ideal” regulatory measures that align with the normative attitudes and regulatory approaches of the donors, the international partners have started collaborating with like-minded Timorese officials at the Anti-Corruption Commission on softer measures such as public awareness campaigns and developing training manuals for junior government staff. One of the commissioners at the Anti-Corruption Commission pointed out that such initiatives have been crucial for training and equipping junior-level staff to spot corrupt practices from senior levels at earlier stages and stop them. Awareness campaigns are targeted mainly at students so that the next generation of Timorese citizens are aware of corrupt practices, and they too can anonymously act as whistleblowers, sending complaints to the commission, a service that was rarely used by the public when the data was collected in 2018. This would allow the Anti-Corruption Commission to bypass the Office of the Prosecutor General and initiate investigations. Thus, even though translocal compromises have led to the adoption of a compromised regulatory framework for addressing corruption in the country, they have facilitated further opportunities for international and local actors to build alliances and engage in broader initiatives to tackle corruption. In 2020, after many years of NGO lobbying and increased calls from the public, an anti-corruption law was adopted in the country—Measures to Prevent and Combat CorruptionFootnote 53 —and, according to a public survey conducted by the Asia Foundation (2022), public perceptions of corruption in the public sphere are going down even though high-profile cases are still considered a problem.
A finding from the case study is that, in settings where intermediaries are compromising, local actors can take proactive roles even before the implementation stage. This finding adds to the scholarship that captures the “politics of implementation” by local actors (Carruthers and Halliday Reference Carruthers and Halliday2009; Gillespie and Nicholson Reference Gillespie and Nicholson2012). Scholars have mainly pinpointed the agency of local actors in shaping the outcomes of legal transfers at the implementation stage as they exert more influence and control over how newly adopted laws are implemented and enforced. This is because, in conventional legal transfer initiatives, international partners have more influence at the adoption stage with the “top-down” imposition of new regulatory arrangements to a recipient society as part of aid or trade-related conditionalities. In East Timor, during the initial state-building phase, international actors played prominent roles in setting the limits of the legal system (Grenfell Reference Grenfell2013; Nicholson and Hinderling Reference Nicholson, Hinderling, May and Winchester2018). However, this dynamic shifted after the 2006 crisis. The involvement of local actors at the adoption stage means that they can exert their influence even at the initial phase by choosing which international actors to partner with and putting forward their normative perspectives either overtly (in the case of proposing legislation on parliamentary immunity) or altering regulatory arrangements introduced by international partners through covert ways (in the case of appointing senior officials at the Anti-Corruption Commission).
Conclusion
This article has examined what happens during transnational legal transfers when multiple parties are involved in the transfer, adoption, and implementation of new legal rules and institutional arrangements in a local setting. I have demonstrated how transnational legal transfers involve the interaction of diverse interest groups that bring their plural approaches to addressing an issue. Such an encounter of plural legalities has implications on the eventual regulatory arrangements that are adopted in a society. At local settings where translocal normativities diverge and collide, I have argued that first-level actors can engage in cooperative ways to find a middle ground for further engagements. Such compromises that are made as part of these transnational legal transfers influence the possibilities and limits of regulatory arrangements adopted in a society. The findings from the Timorese case study show how, despite the varying normative attitudes and regulatory approaches, international and local actors worked toward adopting a new regulatory framework for addressing corruption in the country. Compromises made among the first-level actors resulted in the adoption of a regulatory framework that combined different regulatory models supported by the parties.
In East Timor, although the adopted regulatory framework compromised the investigation, prosecution, and enforcement of corruption cases in the country, it has enabled further engagements between international and local partners who are invested in tackling corruption locally to undertake innovative initiatives to address the problem, thus setting a path for the settling of anti-corruption norms in the country. Even though entering into compromises meant that the international partners had to make concessions from their intended regulatory arrangements, it was only because of such compromises that they could engage in innovative ways to strengthen the regulatory arrangements and tackle corruption locally. Thus, the transnational anti-corruption reform initiatives in East Timor show that the transfer and adoption of global norms to local settings is rarely a linear process. In settings where plural approaches to addressing a transnational issue exist, finding a middle ground and adopting regulatory arrangements that still allow for tackling a globally identified social problem is possible. However, whether entering such compromises facilitates the regulation of an identified problem is context specific and needs to be empirically assessed.
The Timorese case study provides a valuable lens to understand what happens in other transitional settings and contexts where multiple actors are involved in legal reform initiatives to address a transnational problem. It highlights that, beyond the possibility of adoption, selective adoption, and rejection, recipients can also enter into compromises with international partners. The case study also reveals why first-level actors involved in transnational legal transfers may need to compromise. Unlike instances of legal transfers where an international partner emerges as the dominant actor, transnational legal transfers bring a wide range of actors who can mobilize their social, cultural, and economic capital in varied ways to gain influence locally. In such instances, international partners may choose to cooperate and compromise so that they can continue their engagement with local partners. As for local actors, they may enter into compromises for financial aid and international support or for elevating their status in the international community by adopting reforms in a specific area. This underscores the significant role of local actors in shaping the outcomes of legal transfers, even at the adoption stage.
Finally, a consideration of the possibility of compromises as part of transnational legal transfers also has implications for understanding the successes and failures of legal transfers. While a compromised regulatory framework may not align with the intended “ideal” framework proposed by international partners to address a problem in a society, it might still be effective in tackling the issues that do not fall within the sphere of compromise. In East Timor, the newly adopted institutional arrangements were limited in addressing corruption charges involving allies of the old guard leaders. However, the compromised regulatory institutions were good enough to pursue and prosecute other cases (often successfully as seen in the instance of Lucia Lobato’s case). This underscores the need for more empirical studies to map what compromises were made, who was involved in making such compromises, and how they shaped the outcomes in terms of what laws and institutional arrangements were adopted and how they were used. The findings presented in this article are crucial for policy makers, legal scholars, and researchers working on transnational collaborative initiatives as they highlight the importance of considering the conflicts, competition, and compromises unfolding in local settings during legal reform initiatives.
Acknowledgments
My sincerest gratitude goes to the many readers of previous drafts of this article for their constructive feedback and encouragement. Professor David Nelken, Dr. Deval Desai, Professor Mathias Siems, Professor Naomi Creutzfeldt, Professor Mark Fathi Massoud, Professor Lynnette Chua, Dr. Nafay Choudhury, Dr. Laura Burke, Dr. Sara Ten Brinke, and the four anonymous reviewers at Law & Social Inquiry, your insights and critiques have significantly shaped and refined my arguments and ideas. I would also like to thank the Dickson Poon School of Law at King’s College London for the generous funding to carry out the empirical research in East Timor in 2018 and the European University Institute Max Weber Program for the editorial support and additional research funds during the final stages of this article in 2023. Finally, I am grateful for all the assistance provided by Bertanizo Ghurro, who helped me organize meetings with Timorese officials and translated documents and interviews in Portuguese and Tetum and whose support was crucial for completing my fieldwork in 2018.
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