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09 December 2019

Witch killings: Anthropological and Juridical Perspectives

East Timor Law and Justice Bulletin witchcraft in east timor juridical anthropological perspectives

I recently came upon a paper Beyond Democratic Tolerance: Witch Killings in Timor-Leste [1] in which an earlier debate between myself and Nicholas Herriman demonstrated some fundamental misconceptions by anthropologists as apologists for all things of custom, including law.

I hold a formal degree in anthropology and sociology so I am not simply approaching the problem of extra-judicial killings of innocent citizens, by, in effect, a crazed mob, from a juristic perspective only but from an entirely holistic analysis.

I am particularly concerned about the proposition that democracy in not inimical to witch killings.

"To the extent that this is true, it appears that democracy is not antithetical to witch killings."

That is a proposition that must be answered because it is fundamentally very problematical.

I draw an analogy with the historical ideology of racism that corrupted anthropology and ethnography beyond redemption as a respectable intellectual paradigm for understanding and explaining reality, let alone being a reliable foundation for policy and laws.

My own interpretation of that statement is that it inverts and therefore distorts the juristic truth that it is witch killing that is antithetical to democracy. For jurists, that is axiomatic.

And that was my original point, that witch killings are antithetical to democracy; the response was the democracy is not antithetical to witch killings.

This might seem futile semantic hair splitting but it goes to the core of the matter. The next logical step for the jurist is that customary law is antithetical to democracy and that is the fundamental problem.

Furthermore, it follows that customary law can only operate in the positive law subject to the constraints of the positive law, as far as permitted by the positive law and strictly enforced so that the social problem of witch killings stops and a new level of social consciousness and advancement is achieved, if only for the utilitarian purpose of the betterment of all at the cost of the few, the few die hard traditionalists who insist on maintaining their draconian and primitive social, political and economic power, along with their Western academic anthropologist apologists, apologists for murder.

By endorsing and promoting customary law, anthropologists have not only stepped beyond any supposed legitimate scientific investigation within their discipline, but they thereby become complicit at an abstract level in these bloody atrocities.

They set themselves and their ideologies above responsibility for the advancement of perverse and abominable cultural maladaptations that fly in the face of civilisation and challenge and compromise the modern nation State polity that is entirely dependent upon constitutionality and the dictatorship of the rule of law, as they struggle to transform from feudal or alien invasion and hegemony in the homeland into democracy and justice informed only by experiential evidence, methodological resolution of social problems and rational theory, not by supernatural mumbo-jumbo.

In this never ending quest, for even modernised post-industrial societies continue to face challenges from State and corporate domination, rather than the matter at had, only juridical ideas can form a sound foundation for a new order.

Firstly, let us identify witch killings for what they are:

murder;
manslaughter;
unlawful killings;
extra-judicial killings (including torture);
mob-rule; and, therefore,
a profoundly disturbing cultural maladaptation.

Secondly, I reiterate some observations that emphasise the problematics of customary law from a strictly juristic analysis but nonetheless one that is informed by anthropological data; and that is where the role of anthropology stops. The role of anthropology here is merely to inform the State's legal policy, not substitute nor dictate it.

The efforts by anthropologists to compel the State to "respect" customary law, incorporate supernatural explications into the purely secular legal system and into the positive law and allow them to operate as an agent of justice are not legitimate pursuits for anthropology. They are not intellectual exercises. They have become part of the anthropological apology and grafted onto yet another ideological or political agenda that does not credit intellectualism.

I maintain that the correct starting point for any analysis of this issue is that the advocates of customary law advocate retrograde social devolution that is truly antithetical to the universal norms of humanity itself that are expressed in instruments such as the Universal Declaration of Human Rights, to which anthropologists have closed their eyes, and their minds.

In 2003, a remarkable paper was presented by the then President of East Timor, Xanana Gusmao, on the occasion of the International Conference on Traditional Conflict Resolution & Traditional Justice in Timor-Leste.

I would like to extract from the text of that paper, not only to advance my argument here but to generally draw attention to the ideas in that paper, which I adopt without any amendment or reservation.

"[T]raditional laws ... represent the stage of evolution of a society and usually correspond to societies based on feudal relationships both in the social and religious (non-formal religions) aspects; both aspects are combined with the political and economic ones and add to another which refers to castes as the lower echelons of society, slaves and those who practice witchcraft and whom are usually denied rights."

"Traditional justice is usually enforced by traditional chiefs acting as the authority, by the elders whose experiences prevail and by the 'lia-nain' (literally: keeper of the word) who are considered the men of law. The 'lia-nain' are usually the custodians of the 'lulik' (all that is sacred) or have some link to it; this derives from the need to link that which is real to that which is ethereal in order to accord moral credibility to whichever solution is adopted.

This combination of factors normally (not necessarily always) brings grave implications in the shaping of justice. One factor arises from the status held by the agents of justice and the other from the extremely powerful influence resulting from the interpretation of the facts, usually explained by resorting to the supernatural and often denying the realistic content of the values of justice (or overriding reality itself)."

"There are no defense lawyers involved but testimonies of witnesses are deemed of great importance. Direct confrontation of facts between both parties occurs before all present at an assembly and all those interested may have their say. Most of the time, this method positively influences the agents of justice leading to an impartial decision."

"There is no common pattern in the sentencing or punishment; because there were no prisons."

"It is absolutely necessary to place modern laws within a context to counterbalance the confines of the interpretation of values by Traditional Justice, so as to clearly define the limits to which Traditional Justice must comply with and thus avoid trampling on the spirit of the law of a country or stepping on human rights."

"This undertaking will also enable negative traditional concepts, which today still greatly influence the attitudes and reactions of people, to be corrected.

I wish you every success in this voyage to the past."

And so I reiterate the summation by Strating, Rebecca, and Beth Edmondson of the divergence in the analytical approaches between anthropology and the law to the social problem of witch killings in East Timor.

“In Timor-Leste these tensions are pronounced in continuing debates concerning the killing or injuring of women accused of witchcraft – a country where infrequent, extrajudicial punishments of accused witches have continued to occur since independence (Wright 2012; Jütersonke et al. 2010: 51).

In a much-publicised case in 2009, the police were called to calm residents after rumours spread of a witch named Margareta flying over Dili (Wright 2012).

For instance, during the international state-building mission, allegations emerged that a group of men had tortured and killed an elderly woman they had accused of witchcraft in the eastern Los Palos district (Wright 2012).

A spectrum of customary punishments exists whereby punishments are imposed according to the “severity of witchcraft involved” (Wright 2012).

Another suspected witch reportedly died after hot coals were placed on her back (Wright 2012).

A debate emerged in the Timor-Leste Law Bulletin concerning the “democratic” nature of these customary punishments, primarily between Nick Herriman and Warren Wright. Wright (2012) expressed concerns regarding the extrajudicial nature of these killings and the challenges they pose for Timor-Leste’s democratic institutions. He contends that:

Many anthropologists who lack a comprehension of the concepts of democratic secular law and justice, are ardent supporters of traditional justice systems even though they posit supernatural hypotheses for the explanation of the realities of social disharmony and criminal conduct and impose corporal punishments and worse tortures on citizens accused of the impossible crime of witchcraft. (Wright 2012) Witch Killings in Timor-Leste

In response, Herriman (2009)[3] argues that his fieldwork demonstrates that: Killing “sorcerers” […] was the wish of almost all local residents – often the “sorcerers” own family, friends, and neighbours. In the sense that it is the will of the majority, it is thus democratic. If a trial by jury were established, I strongly suspect that “sorcerers” would be similarly condemned. I suspect that most villagers in Timor-Leste would also wish to kill witches. To the extent that this is true, it appears that democracy is not antithetical to witch killings. (Herriman 2009)

This debate over the democratic nature of these killings points to the challenges the East Timorese state faces in achieving authority over customary law, including laws concerning the punishment of witches. Controversies concerning issues of legitimate jurisdictional capacities highlight the importance of reconciling diverse views of the public regarding the relationship between citizens’ identities and roles, and engendering widespread recognition of the authority of state structures and agencies.

While there may sometimes be good reasons for retaining old cultural practices in new political systems and the resulting new cultures, it is not always possible or reasonable to do so. When claims of cultural practice extend to extrajudicial punishments, it is impossible to reconcile their preservation or efforts to legitimate them within the practices and structures of a new democratic state. For new states seeking to accommodate and preserve cultural practices, it is not necessarily the case that “old” traditions are superior to “new” structures (Wright 2012; Edgerton 2000: 131).", citing Wright, Warren (2012), Murder and Witchcraft in Timor-Leste, in: East Timor Law and Justice Bulletin, 22 December, online: (10 December 2015).

Herriman's essentially bewildering critique of my analysis is reflected in the following paragraphs.

"The final problem with the case to intervene and stop East Timorese killing witches, is that the criteria Wright provide are themselves susceptible to a relativist critique. He advocates, for example, the criterion of “non-draconian”, implying a good legal system is not draconian. For some Aboriginal people living in traditional communities, the formal justice system which incarcerates them (often with fatal results) is more draconian than their system, which might resort to spearing an offender. For many Whites, traditional Aboriginal justice of spearing is draconian.

Another problematic criterion for Wright’s legal system is “democratic”. Killing ‘sorcerers’ where I did fieldwork was the wish of almost all local residents - often the ‘sorcerers’ own family, friends, and neighbours. In the sense that it is the will of the majority, it is thus democratic. If a trial by jury were established, I strongly suspect that ‘sorcerers’ would be similarly condemned. I suspect that most villagers in Timor Leste would also wish to kill witches. To the extent that this is true, it appears that democracy is not antithetical to witch killings.

It might be that we are justified in morally judging and intervening in other societies. I suggest that engaging with the long debate over relativism in anthropology would be a good place to begin this debate. In any case, we should be wary that intervening in societies, even with the best of intentions, most often has a damaging effect.

Finally the criteria we assert for changing a society - such as making the legal system “democratic” and “non-draconian” - should be defined in a manner which is not culturally specific. The case to intervene and stop witch killings in East Timor could be strengthened by taking this step."

My response to this critique is set forth herein.

Warren L. Wright BA LLB

08 December 2019

[1] Journal of Current Southeast Asian Affairs Strating, Rebecca, and Beth Edmondson (2015), Beyond Democratic Tolerance: Witch Killings in Timor-Leste, in: Journal of Current Southeast Asian Affairs, 34, 3, 37–64. URN: http://nbn-resolving.org/urn/resolver.pl?urn:nbn:de:gbv:18-4-9050ISSN: 1868-4882 (online), ISSN: 1868-1034 (print)Published by GIGA German Institute of Global and Area Studies, Institute of Asian Studies and Hamburg University Press.

[2] On the occasion of the International Conference on Traditional Conflict Resolution & Traditional Justice in Timor-Leste published at https://easttimorlawjournal.blogspot.com/2012/05/on-occasion-of-international-conference.html

[3] The Case to Intervene and Stop East Timorese Killing ‘Witches’  Dr Nicholas Herriman Postdoctoral Research Fellow Centre of Southeast Asian Studies Monash Asia Institute Monash University http://arts.monash.edu.au/mai/staff/nherriman.php