29 September 2008

East Timor - Justice For All?

Written by Jesse Wright The National Monday 29 September 2008 - As parliament debates its first penal code, one East Timorese official is pushing for village justice Since the dawn of time justice in East Timor has been measured in water buffalo. Generally a goat theft costs one buffalo and a rape is worth two, although it varies from town to town.

Though traditional justice was never institutionalized, it has remained an underpinning of village life here. Before Indonesia’s 1975 invasion Timor was a Portuguese colony and for 400 years whatever went on outside the capital Dili was ignored. During the occupation courts were notorious for their corrupt judges whose decisions were not respected. When the Indonesians were ousted in late 1999 there was a lot of hope for improvement.

But though independence came in 2002—following two years of United Nations interim rule—East Timor is still struggling to create a set of comprehensive laws. Talk to any legal aid group in this tiny Asian nation and they’ll tell you the best hope is a judicial system including formal justice with trained judges and lawyers. According to the constitution, everyone has the right to a fair trial and an attorney and innocence is presumed until proven otherwise. There’s no mention of water buffalo.

But even as the legislature moves to finalize the nation’s first penal code this month, a minor government official is on a crusade to formalize terra bandu. Usually terra bandu is traditional law used to protect natural resources, but the state secretary for the environment says it can do more.

State Secretary Abilio Lima has already convinced about one third of the nation’s one million people that everything from cattle rustling to rape are crimes best resolved outside courtrooms by water buffalo justice.

To those who know him Lima is an odd character to push for justice. In 1999, the year of Timor’s bloody break from Indonesia, Lima stood firmly with Indonesia as a member of the FPDK, an Indonesian umbrella group which gave money and support to some of the most notorious and bloodthirsty pro-Indonesian gangs. The FPDK is responsible for the death of hundreds of innocent Timorese.

Now as state secretary of the environment he believes he has been tasked to look after the natural environment as well as the home environment of his countrymen.

“I think the environment has a relationship with sexuality,” he said. “When you talk about environment, you talk about human environment, about the social environment. I focus on the total comprehensive environment.”

In the last year Lima says his office has approved a terra bandu system in about half the districts in East Timor. Last week he was in Tulatakeo, a village a few hours south of Dili. He was the government representative in a ceremony which marked the acceptance of traditional justice. Now the village chief can treat serious crimes according to local whim.

“The advantage of terra bandu is that it comes from the community,” Lima said. “Because it comes from the community, they have a responsibility to it.”

According to Lima, the problem is the penal code. Six years of independence and East Timor is still without its own set of laws, relying instead on Indonesian laws last updated in 1999.
“People who don't like Indonesia don't respect the laws,” Lima said. “So we will use traditional law until we can agree on a national law.”

Judicial authorities here are shocked.

“If the secretary of state for the environment is doing this, he is very wrong,” said Fernanda Borges, a member of parliament who sits on the judicial oversight committee. “He’s very wrong because he is operating outside the constitution and outside the judicial system.” Borges has said she will launch a parliamentary enquiry into the matter.

But officials in the justice ministry say they are not concerned with Lima. Although no one in the ministry of justice had heard about Lima’s push for terra bandu, the permanent secretary for the minister said he supported parts of the plan.

“Rape is a crime you can’t resolve through terra bandu,” Crisagno Neto said. “You have to take that to court.” But he added that smaller crimes like minor domestic violence could be resolved using traditional justice. This directly contradicts the Indonesian penal code—which Timor follows.

“Domestic violence is a crime at whatever level,” said Mitch Dufrense, head of the United Nations Justice Support Unit in Timor. “The severity of the specified level is something for the court to decide.”

But women’s rights groups here say community police often tell victims to take their problems to the village elders. According to a lawyer at a local NGO, the police usually won’t get involved in domestic violence or rape cases unless the village chief cannot resolve the problem.

Besides, the permanent secretary for the justice ministry says the courts in Timor are not for everyone.

“Terra bandu is easier and faster [than court trials] in rural areas for people who have no money,” Neto said. “But in cities and in areas where people have money, they can’t use terra bandu. They need to go to court.”

But East Timor is one of the most impoverished nations in Asia where unemployment is around 60 per cent and the average income is about a dollar a day. Most Timorese don’t live in cities and spend their days farming or hunting for food. Under Neto’s criteria almost no one should go to court.

And as it stands today virtually no one does.

In a country where it is estimated that about half of all women will suffer gender based crimes this year, officially closing the door on formal justice has serious consequences. According to the local United Nations office, only 132 women have come forward so far this year to report gender based violence to the police—a far cry from the estimated 250,000 victims.

Instead of a courtroom, many of these women are being dealt with in mean thatched huts. Instead of judges, these women will visit elderly village leaders like Florindo Mesquita Lorego.
Lorego is a balding, snowy bearded village chief in a hamlet hours away from the capitol. He, along with a dozen other village leaders, decides terra bandu cases.

“[Terra bandu] applies to people who are thieves, horse thieves, cattle rustlers, and rapists,” Lorego explained. “People who go into someone's garden without permission from the owner, that's a crime.”

He said rape is not a big problem in his community, but it happens.

“Rape is resolved with two cows and you close the woman's wound,” Lorego said. In Timor when you close the wound you make the problem better—and the problem with rape is the family name. The two cows (as well as the occasional goat or pig) are given to the victim’s family. Often one of the animals is killed, cooked and then the rapist and the men from the victim’s family eat and drink palm wine together. The woman is not involved in the resolution. For her part, all the victim is expected to do is tell Lorego what happened.

Lorego has lived all his life according to these values and now that he has government approval to dole out village justice, he is happy to oblige.

1 comment:

Editor said...

Anthropologists often advocate for the protection and recognition of traditional law. But they are gravely mistaken in these efforts.

Instead, they should be illustrating how traditional justice systems are based on archaic feudal social and political relations, how they admit allegations of witchcraft, the invocation of the supernatural to justify decisions and the imposition of cruel and unsual tortures.

These things are abhorrent to justice and to the rule of law enacted by a democratically elected legislature in a modern nation state.

Furthermore, primordial sentiments such as traditional justice systems pose a dangerous threat to the contemporary legal polity and the civil peace that it seeks to nurture.

One example of the dangers of primordial sentiments emerged in 2006 when ethnicity stoked the political fires in East Timor and was a principle cause of the catastrophic collapse of the rule of law which lead to deaths, injuries, civil disobedience and widespread criminality, property destruction, the dislocation of the population, human rights violations and a state of panic and fear.

Chega! Enough already!