Traditional Justice

Traditional Justice in a New State by JSMP

At the second anniversary of Independence, the Government of Timor-Leste faces the challenge of addressing the many problems facing the judiciary and the justice system of this new nation. The resources included on this website are intended as a resource for policy-makers interested in ways of strengthening the state capacity for conflict resolution through utilising the existing capacities of local justice systems. JSMP wishes to thank all those writers, organisations and donors who have allowed their documents to be posted on this website.

On May 20th 2002, Timor-Leste became the world’s newest independent state. With an overwhelmingly subsistence population of around 800,000 and little income, the nation faces significant public administration challenges. The development of the official legal system is hampered by lack of capacity, inadequate resources and restricted access to district centres, particularly during the wet. Even when district centres can be accessed, only three districts outside the Capital - Dili - have courts, and these face frequent closure due to staff and resource shortages.

It is generally recognised that the state legal system in East Timor does not have the capacity to address the majority of disputes and social transgressions that occur throughout the country. Additionally, the years of Indonesian occupation produced the common perception that the formal justice system is corrupt, representing a further barrier to be overcome. While the formal justice system continues to experience staff and resource shortages and delays, the majority of the population resort to local (traditional or customary) justice systems. The strength of these systems is such that they will continue to underwrite the justice and conflict resolution capacity of the new nation – at least in the short to medium term. The reality of the justice situation in Timor-Leste presents an opportunity for the state to extend its reach through formally recognising the contribution to social stability made by local justice systems, and lending these systems extra legitimacy in the process. By directing a share of the state’s finite resources towards capacity-building local justice systems in important areas (for example, the rights of women and relocated people), the state has the potential to harness existing low-cost conflict-resolution capacity and direct it towards the realisation of national development objectives.

Existing literature on local justice systems highlights relative strong-points in a number of areas, including the following:
¨ Low cost
¨ Accessibility
¨ Speed of resolution
¨ Promotion of reconciliation between parties
¨ Access to a range of mediators and mediation forums

The literature also highlights a number of areas in which improvements to local systems may be desirable. These concerns relate to human rights, natural justice and the consistency of treatment for victims and perpetrators. Understanding of both the strengths and shortcomings of local justice systems is necessary to inform the development of an approach aimed at integrating local justice and conflict resolution capacity into the state system.
 
Report on Research Findings and Policy Recomendation for A Legal Framework for Land Dispute Mediation
By The Timor Leste Land Law Program (LLP)
 
This Report is the second of this series of research studies focusing on various critical land titling issues. This second report includes research findings and policy recomendations for the development of a legal framework on Land and Dispute Mediation. Read More, Bahasa, Portuguese
 
Report on Looking Both Ways: Model for Justice in East Timor
By Dr David Mearns, Australian Legal Resourch International (ALRI)
 
Troughout two years of assisting the people of East Timor build their new democracy, ALRI has been encouraged by the wide interest shown in our work on Community System of Justice. It has been response to that interest that this publication was commissioned. Read More, Bahasa
 
Research Report on Traditional Justice and Gender Based Violence
by Aisling Swaine, International Rescue Committee (IRC), August 2003
 
As a result of these restrictions, the potential for reaching a large number of respondents was quite limited. A total of 25 women were interviewed and their stories recorded in order to gain a glimpse into how local justice systems influence their search for protection from violence. A further 35 women were interviewed through Focus Group Discussions. Consultations and interviews were also held with approximately 60 people in the wider social context including holders of local justice, police, women’s representatives, formal system actors and staff of NGO’s and health services. Read More
 
Findings and Recomendations: Workshop on Formal and Local Justice System in East Timor
by JSMP, July 2002
 
Traditional Law, Sometimes called "Local Justice", in East Timor, raises many complex issues. this system of "Local Justice" has been used by generations of East Timorese, adn is still used to determine both criminal and civil cases. In the traditional system, village chiefs decide every case, and the parties are bound by the result. This places is haevy responsibility both on the village chief and on the parties, as the outcome creats an obligation with participants must respect. Read More
 

Report on Reconciling Justice ‘Traditional’ Law and State Judiciary in East Timor
by Tanja Hohe and Rod Nixon, January 2003

 
Local legal systems have proven of continuing relevance in East Timor throughout and beyond the periods of Portuguese colonial and Indonesian occupation. The imposition of state judiciaries during these periods has had a limited impact and the local population has demonstrated an impressive ability to utilize these institutions in accordance with the priorities associated with their own world view.The latter consists of a refined socio-cosmic system in which kinship concepts relate closely to most aspects of life. State-less communities are ordered through these systems, with supernatural ancestral powers as controlling and life-giving forces. Conflict resolution and punishment of crimes are part of this. They are characterized through replacement of values to stabilize the cosmic flow and through social reconciliation to ensure continued harmony within the community. These mechanisms have developed in an environment where no state-bodies prevailed, and are paradigmatically contradictory to modern systems of rule of law. Read More
 
Report on The Success of Tradition: Lisan and the Reintegration of East Timorese Militia Members
by Chris Lundry Arizona State University
 
The continuing existence of Lisan throughout nearly 500 years of colonial domination and in the face of adamant opposition in the early stages of its latest administrator shows the relationship of law and society. Laws are culturally embedded, and not just abstractions. The persistence of Lisan in East Timor shows that politics and law do not operate in a void, but rather reflect and grow with the society for which they serve. This paper also acknowledges the growing line of inquiry into transitional justice in post-conflict situations. Read More
 
President President Xanana Gusmao Addresses Asia Foundation Conference on Traditional Justice in East Timor
 
Dili, June 27,2003 -- On June 27-28, 2003, The Asia Foundation hosted an international conference on "Traditional Conflict Resolution & Traditional Just in Timor-Leste". The conference, held in Dili, brought together both domestic and international experts on Traditional Justice to present research findings and successful methodologies which will help to inform and guide subsequent research efforts on dispute resolution and traditional justice. The conference is part of the Foundation's broader and ongoing, USAID-funded, program on "Access to Justice" in East Timor.

The featured speaker at the conference was East Timor's President Kay Rala Xanana Gusmao. President Gusmao, a long time leader in East Timor's independence movement, was elected as the country's first president in April 2002. Below are his remarks to the conference:
Address by
H.E. PRESIDENT KAY RALA XANANA GUSMÃO
On the occasion of the
International Conference on Traditional Conflict Resolution
&
Traditional Justice in Timor-Leste
Dili, 27 June 2003

Professor William Collins
Dr. Dionisio Babo
President of the Court of Appeal
My friend, Mr. Hasegawa, DSRSG
Ministers for Justice
Ambassadors
District Administrators
Members of Civil Society

Good morning to all,
I would like to thank Asia Foundation for inviting me and I congratulate you for undertaking this important initiative. It is a pleasure to be able to join with you in this debate on Timorese Traditional Justice. I am not an expert in this field, and therefore, I ask for your understanding for any gaffe in my presentation. However, I will be satisfied if I am able to contribute in any way whatsoever towards the work carried out by those more competent in this field. During my youth, I read somewhere that the first laws were adopted based on norms regulating social interaction between individuals and groups or clans and they evolved with time and with the development of societies.

The norms or laws were and are made to respond, or to act as a guideline, directive or as punishment to emerging practices or to attitudes which collided with common sense or were offensive to the spirit of justice or, still, clashed with moral standards in a society . In less developed societies, laws are sets of norms that guide behaviour and acts of society; they are usually unwritten and based on customs and traditions. Contemporary social laws are much more complex and their evolution also occurred according to individual assimilation of values of universal dimension. Whereas contemporary written laws warrant a permanent and global concept of values, traditional laws lack resolve in their expression because they are unwritten and may change according to the narrator's interpretation, although still maintaining a dynamic of its own.

Common or traditional laws also 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.
It is within this context that I would like to approach Traditional Justice. 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).
Which was the mechanism adopted by traditional justice?
When there is a dispute the injured party presents the complaint to the hamlet chief. If the disputing parties are from the same hamlet, the chief, the elders or the 'lia-nains' will try to resolve the problem by calling together both parties involved. If one of the parties is from another hamlet but from the same village, the complaint will be presented to the village chief. If the dispute is between people from different villages, the chief of the village of the plaintiff will inform the village chief of the accused party and the 'lia-nains' will meet to seek a solution. If a solution can not be found, the issue will rise to the 'chefe de posto' (chief of the next level of social and administrative organization, known today as sub-districts)

Let us use the example of a problem resolved within a hamlet or a village. If the disputing parties are distant from the agents of justice, one may state 'a priori' that the dispute is resolved more or less impartially. I say 'more or less' because as with contemporary justice, 'bonuses' are a reality and the balance of justice may weigh in favour of those who pay more. If either the plaintiff or the accused had a previous problem with any agent of justice (hamlet or village chief) then one may also say that 'a priori' there is no guarantee of the impartiality of justice and, in such cases, the supernatural will be brought in to legitimize the solution.
The 'envelope' culture does not exist but there are lobbies to impress opinions and lobbies can also lead to promises of payments (in kind, pigs, goats, and so forth) to agents of justice often in amounts which are much higher than what is in dispute. The issue at stake is not to lose the case. It is common practice for plaintiffs to provide food to those acting on behalf of justice since they are seeking their assistance. Once the problem is resolved, it is also common for the winning party to give a monetary reward to the agents of justice.

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. It should be added that in cases where land or property are seized, the men of justice will travel to the said land to verify the validity of the complaint or even to verify the validity of the land or property appropriation.
It should also be mentioned that, at times, when the injured party disagrees with the decision and believes it to be unjust, they may react in various ways, even commit murder, as a form of personal revenge.
The same may happen with the second party who may recognize the offense or crime but feels that the punishment was excessive or unduly excessive.

There is no common pattern in the sentencing or punishment; because there were no prisons, the alternative was community work either in the village or in the house of the 'liurai' (traditional leader). The most often used solution is indemnity and the amount is established according to the gravity of the case and also taking into account the means of the offender. It almost sounds as though I am demeaning traditional justice by highlighting the negative side of justice itself. This is not my objective, although in presenting it this way, I am stating that one must take into account the weaknesses of the system. However, just as the law evolved to a more complex level so did the weaknesses and today, modern judicial systems encompass sophisticated forms of bribery and dependency, even political dependency from the different levels of power.

Ladies and Gentlemen,
Is it relevant to prescribe the use of traditional justice?
Well, I should start by saying that there is a very positive trait in traditional justice - the 'badame' (literally: forgiveness or reconciliation). The spirit of appeasement underlies the 'badame'; as a result, when a solution is agreed to by all, the problems will not be dragged on into the future by the parties. To accomplish 'badame' it is not enough for the agents of justice to rule a sentence as in modern courts where a judge decides and all comply. The sentence is put to the offender who might deem it too harsh and dialogue is established between the parties until agreement is reached - this is a commendable act of weighed consideration.

But most importantly is the fact that both parties accepted, of their own accord, to make the commitment.
Traditional justice has the advantage of reminding people of their blood ties by evoking their common family tree and reverting feelings of enmity to an understanding between brothers. Traditional justice not only resolves existing problems but also has the ability to prevent, to focus the attention and to bring closer people who have chosen to break away from each other. Traditional justice also has the ability to be, more or less, the custodian of the 'memory archives' on the legitimacy of acquired or inherited property and assets. Traditional justice also has the advantage of recognising the means of each party.
Traditional justice has the gift to appease resentment between former enemies and promote bringing together hostile parties within the same community.

It is within this context that we may still consider traditional Justice to be relevant in our society.
If we know how to take advantage of the positive aspects of traditional justice and to identify its weaknesses as a mechanism and in its values, traditional justice (in other words, 'Community-applied Justice') will play an important role in preventing minor problems from dragging on and becoming major conflicts, inducing families or even entire hamlets against each other. 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. Consequently, it will be possible to establish which level of dispute in villages should be handled by Traditional Justice. For Traditional Justice to gain greater credibility it is necessary to reorganise its components; this will enable these 'courts' to truly serve the communities and continue to be open and accessible to the general public at a greater level.

Ladies and Gentlemen,
When I visited Becora Prison, I met two young brothers, a cousin and an uncle involved in the murder (beating to death) of a brother-in-law. The motive for murder was that the brother-in-law mistreated his wife, the sister of the two young brothers. I asked if they had made every effort to speak to him about the issue; they explained that the brother-in-law always refused to do so; therefore, they wanted to give him a beating to teach him a lesson; when it happened they felt such wrath and lost control and as a result, the man died.
What remained in my memory was that the youths invoked tradition to plead their innocence, given that the death of their brother-in-law was acceptable according to our practices and customs.
I met three young girls at the Ermera prison who were involved in the murder of a man - I do not recall if he was their brother or brother-in-law - who abused or mistreated their parents. After several failed attempts to change his attitude, they stabbed him.

I was informed of another case in Ermera where attempts were made to change the attitude of a brother who was constantly inebriated and did not care for his wife and children. After various attempts and efforts to change the situation, the insults by the brother led to a fight and homicide.
Such cases reveal the crying need to establish the judicial system based on the 'sucos' (villages) so that local government bodies, including the police, may intervene and avoid disputes within the community. Only with a judicial system at the service of the communities, will disagreements, quarrels, contradictions and conflicts be referred to those legitimately empowered to resolve them and, thus, avoid excesses and taking justice into one's own hands; this would be a clear warning to the State of the lack of credibility in the judicial system or that it is not accessible on a daily basis and is too slow, contaminated by excessive bureaucracy and inefficiency. I hope this Conference will raise further questions and assist us and, above all the State institutions, to seriously reflect on this issue.

Ladies and Gentlemen,
As dictated by my role and mandate, I raised the need for a Judicial system at the service of the communities, putting into perspective a new structural parameter of values so that we may attain a standard context for our formal judicial and legal system.However, this Conference has the ambitious goal to research and compile a Tetum Traditional Legal Glossary to be explained later into the other languages spoken in our country. I consider it ambitious, not because it is unachievable, but because it is extremely important to undertake such work. There is a risk of losing this heritage of the Timorese cultural identity. It is also ambitious because once the Glossary is compiled, it will be of immense assistance to the way in which we are shaping our own judicial system, for it will avoid the enormous gap, which is often difficult to bridge, between drafting the law and the still traditional perception of the majority of the population.
In this difficult situation of adjustment, there is an impression that a gigantic leap is being imposed upon society, both in timing and in mentalities.

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 that will enable the consolidation of our steps towards the future.
Thank you very much.