Subject: East Timor mulls traditional justice for serious crimes
For many in East Timor, access to the justice system is almost impossible. Institutions are weak and the remoteness of many villages means it can take days to reach the nearest police station. Now, one government official is travelling around East Timor promoting the use of traditional justice for all crimes, including rape.
Presenter: Stephanie March
Speakers: East Timor MP Fernanda Borges; Albilio de Jesus, Remexio sub-district police commander; Tulatakeu village chief Florindo Mesquita Lorego; State Secretary for the Environment Albilio De Jesus Lima; Chief of the United Nations Administration of Justice Support Unit in East Timor, Mitch Dufrense
MARCH: Tulatakeu village, is 14km from the nearest police station. It takes an hour and a half to walk there, and the road's in poor condition, and is cut off for several months of the year during the wet season. Albilio de Jesus is the Remexio sub-district police commander. He has 11 staff, and one motorbike, to police a population of 10,000.
DEJESUS: According to us, that's not enough. But while United Nations police are here we coordinate with them when we go on patrol. We got to maybe one town or two towns a day. Then we will go to more towns the next day.
MARCH: For many people in East Timor, access to formal justice is almost impossible. Institutions are weak, and it can take hours to reach the nearest police station and days to the nearest courthouse. For centuries, communities have relied on local mechanisms to resolve problems. Community leaders, from Tulatakeu including village chief Florindo Mesquita Lorego recently signed a document formalizing a committee to dish out traditional justice.
LOREGO: It applies to people who are thieves, horse thieves, cattle rustlers, rapists. People who go into someone's garden without permission from the owner, that's also a crime.
MARCH: I asked him what the penalty would be for someone found guilty of rape.
LOREGO: That will depend on what the council demands, they could demand two cows, maybe three, and they have to restore the reputation of the woman's community to other communities.
MARCH: And one East Timorese government official is traveling around the countryside, promoting the type of traditional justice adopted in Tulatakeu. State Secretary for the Environment Albilio De Jesus Lima recently visited the village to congratulate them for adopting traditional justice to include crimes like theft and rape.
East Timor is governed by the Indonesian penal code, and other laws developed during the period of United Nations administration following independence. Mr Lima says people don't trust those laws, so while the government works to establish an organic law, it's best to rely on traditional mechanisms.
LIMA: I think the environment portfolio includes sexuality, you talk about environment, you talk about human environment, about social environment, I focus on a total comprehensive environment. I am a public servant, aren't I?
MARCH: The inclusion of rape in the informal justice system is alarming for human rights advocates. Traditional law known as terra bandu is mainly used to resolve community disputes about land and resource management, not crimes against the person. Traditionally in East Timor, often the crime of rape is not considered a crime against the person, but against her family. The belief is that if a woman becomes a victim of sexual assault, the community will believe her family can't take care of her.
Chief of the United Nations Administration of Justice Support Unit in East Timor, Mitch Dufrense says the biggest concern with traditional justice is whether or not the process and outcomes meet basic human rights standards.
DUFRENSE: The Minister of Justice has already stated that gender-based violence linked crimes are to be dealt with in the formal justice system. Those cases have traditionally been very challenging in the traditional mechanisms and have been examples of types of cases that fall below international standards.
MARCH: MP Fernanda Borges says traditional justice in East Timor is not set up to support victims of gender based violence.
BORGES: Usually it is the men that are the nucleus of power in the local community, and women are underneath that system. It works for other things, but I think definitely for domestic violence it is not an appropriate form to engage.
MARCH: State Secretary for the Environment Albilio de Jesus Lima says he has visited six districts that are using traditional law, which means up to one third of East Timor's population could be using this form of justice. But MP Fernanda Borges says what he is promoting goes against many of the international human rights conventions signed by East Timor
BORGES: If the secretary of state is doing that he is very wrong, because he is operating completely outside of the constitution and the judical processes that are established in the country.
Water buffalo justice reigns in East Timor - FeatureSun, 28 Sep 2008 02:12:05 GMT
Dili - Justice in East Timor has traditionally been measured out in water buffaloes. A goat theft costs one buffalo and a rape of a woman is worth two, although it varies from village to village. While it has never been institutionalized, the traditional way of meting out justice has remained an underpinning of village life on the impoverished half-island, even under 400 years of Portuguese rule.
After Indonesia's 1975 invasion, courts were established but not respected because of a corrupt system and judges. Since 2002 and following two years of United Nations interim rule, East Timor has been independent and eager to abandon the Indonesian system and adopt its own judicial system.
Legal aid groups said the best hope for East Timor is a formal judicial system with trained judges and lawyers. According to the country's constitution, everyone has the right to a fair trial and an attorney, and innocence is presumed until proven otherwise. There is no mention of water buffalo in the constitution.
But even as the National Parliament moves to finalize the nation's first penal code this month, a minor government official is on a crusade to formalize terra bandu - traditional law Timorese have used to preserve natural resources and regulate other matters of daily life.
Secretary of State for the Environment Abilio Lima has already persuaded about a third of the nation's 1 million people that everything from cattle rustling to rape are crimes best resolved outside courtrooms by water buffalo justice.
Last week, Lima was in Tulatakeo, a village a few hours south of the capital, Dili, as the government representative in a ceremony to mark the acceptance of traditional justice. Now, the village chief has the authority to 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 with East Timor's penal code is that it relies on Indonesian laws and was last updated in 1999, three years before the country gained independence.
"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."
Many judicial authorities in Dili said they were shocked at the moves by Lima, who has no legal authority to impose terra bandu or any system of justice.
"He's very wrong because he is operating outside the constitution and outside the judicial system," said Fernanda Borges, a member of Parliament who sits on its judicial oversight committee.
Borges said she would launch a parliamentary inquiry into the matter. However, some officials in the Justice Ministry seemed unconcerned with Lima's actions.
Although not informed about the environmental secretary's push for terra bandu, the permanent secretary for the minister of justice 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."
However, Neto said smaller crimes like minor domestic violence could be resolved using traditional justice, a statement that contradicts East Timor's penal code.
"Domestic violence is a crime at whatever level," said Mitch Dufrense, head of the UN Justice Support Unit in East Timor. "The severity of the specified level is something for the court to decide."
Yet Neto said the courts in East Timor are not for everyone.
"Terra bandu is easier and faster 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."
In East Timor, where unemployment hangs around 60 per cent and the average income is about a dollar a day, the majority of the population lives where they can farm and hunt for food. Under Neto's criteria, almost no one should go to court, and, as it stands today, virtually no one does.
The United Nations estimated that about half of all women in East Timor would be the victims this year of gender-based crimes, yet according to the local UN office, 132 of the estimated 250,000 victims have come forward to report such offenses to police. Instead of a courtroom and a judge, these women could visit the thatched hut of a village elder.
One such elder is Florindo Mesquita Lorego, a balding, snowy-bearded village chief in a hamlet hours away from Dili who, 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.
Closing the wound means the perpetrator makes the problem better, and the problem with rape is damage to 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, except to report what happened. The secretary of state for the environment has put his stamp of approval on such a system for about half the districts in East Timor and said he sees his portfolio as reaching far beyond ecology.
"I think the environment has a relationship with sexuality," Lima said. "When you talk about environment, you talk about the human environment, about the social environment. I focus on the total comprehensive environment."