Institutions and the East Timorese Experience
Original Citation: 2006 ETLJ 7 INSTITUTIONS AND THE EAST TIMORESE EXPERIENCE
B.A (Hon.), LL.B / M.A. International Affairs
Norman Paterson School of International Affairs &
Faculty of Common Law, University of Ottawa
Timor-Leste Flag from:
Geographic Index to Flags of the World (2006-02-18)
<http://www.crwflags.com/fotw/flags/tl.html> (Accessed March 13, 2006)
Drawing (and subsequent drawings) from:
Butt, Simon, David, Natalie, and Laws, Nathan. Looking Forward: Local Dispute Resolution Mechanisms in Timor-Leste. Australian Legal Resources International: produced for The Asia Foundation in Timor-Leste (1st Ed. 2004). (Publication pending – source available from author upon request)
Detailed map of Timor-Leste from:
Perry Castañeda Map Collection.
<http://www.lib.utexas.edu/maps/middle_east_and_asia/east_timor_rel_2002.jpg> (Accessed March 12, 2006)
Rough Timor-Leste District Map and boundary data:
Administrative divisions of East Timor (2005-08-19)
<http://www.crwflags.com/fotw/flags/tl-.html> (Accessed March 13, 2006)
TABLE OF CONTENTS
INTRODUCTION & BACKGROUND 7
CURRENT SITUATION 10
WORKING DEFINITION & INSTITUTIONS 11
NEO-ANTIQUARIANISM, MALADAPTATION, AND DEVELOPMENT 17
UNTAET AND THE FORMAL JUSTICE INSTITUTION 21
CURRENT PERCEPTIONS 26
ISSUES AND LEGALITY OF LDRMS 27
CONCLUSION & PRECEDENT 30
APPENDIX 1: LOCAL DISPUTE RESOLUTION MECHANISMS IN TIMOR-LESTE 35
Aileu 36,889 729 282 Aileu
Ainaro 53,629 797 308 Ainaro
Baucau 104,571 1,494 577 Baucau
Bobonaro 82,385 1,368 528 Maliana
Cova Lima 55,941 1,226 473 Suai
Dili 167,777 372 143 Dili
Ermera 103,169 746 288 Ermera
Lautem 57,453 1,702 657 Los Palos
Liquiça 55,058 543 210 Liquiça
Manatuto 34,900 1,706 658 Manatuto
Manufahi 38,580 1,325 512 Same
Oecussi 58,521 Oecussi
Viqueque 66,434 1,781 687 Viqueque
13 districts 924,642 14,604 5,638 Dili
ADR Alternative Dispute Resolution
CAVR Commission for Reception, Truth and Reconciliation in East Timor (CAVR is the Portuguese acronym)
GDP Gross Domestic Product
HDI Human Development Index
ICCPR International Covenant on Civil and Political Rights
INGO International Non-Governmental Organization
INTERFET International Force for East Timor
LDRM Local Dispute Resolution Mechanism (see glossary for further explanation)
NGO Non-Governmental Organization
PPP Purchasing Power Parity
UN United Nations
UNPol United Nations Police
UNTAET United Nations Transitional Authority in East Timor
AdatRules and practices of social life, a culturally appropriate sense of propriety, tradition and custom. Now termed lisan.
Aldeia Further sub-division of sub-district level- a very small hamlet
Chefe de Aldeia Hamlet leader/hamlet chief; charged with dispute resolution at Aldeia level (among other cultural functions)
Chefe de Suco Villageleader/village chief; charged with various duties at the village level, including dispute resolution. Covered by decree law on Chefes de Suco, and is an elected official.
District Area of land delineated for administrative purposes. There are 13 districts in Timor Leste, listed above.
Lisan Adat term was popularized during the Indonesian occupation, but in Tetum, the proper term to be used is Lisan , which signifies adat in the broad sense. See Appendix 1 for comprehensive definition.
Mechanism Speaking broadly of Timor-Leste, this comprises at least 3 separate levels of dispute resolution: 1. Chefe de Aldeia, 2. Lisan leader (usually an elder, male or female), 3. Chefe de Suco. Not all use the same process. Appendix 1 is but a sample of the process.
Suco Sub-District division at the village level
INTRODUCTION & BACKGROUND
Timor-Leste (formerly East Timor) is the world’s newest democratic country. After nearly 400 years of Portuguese colonial rule and 24 years of Indonesian military dictatorship rule, independence was gained in May of 2002. It is a small country, covering half the island of Timor and currently has a population of less than one million. Timor-Leste is a village-based society with over sixteen distinct language groups, characterized by dramatic geography, isolation, and diverse local cultural traditions.
From colonial rule to military rule, Timor-Leste has been treated as a resource base, first by Portugal, Japan, and finally Indonesia. Physical infrastructure built under occupation was limited, while the education system remained weak, and commercial development largely non-existent. There was a near total dependence on outside powers for governance, decision-making procedures, and justice.
The country has a violent history. After a brief civil war, Timor-Leste declared independence from Portugal on November 28th, 1975. Timor was invaded and occupied by Indonesian forces nine days later, under the auspices of crushing a Communist revolution and at the request of a defeated internal faction, the União Democrática Timorense (UDT). It was then incorporated into Indonesia in July 1976 as the province of Timor Timur, in violation of international law prohibiting acquisition of territory through aggression. This move was internationally recognized only by Australia.
An unsuccessful, yet extremely brutal, campaign against local resistance fighters followed over the next twenty-four years, during which the occupiers, killed, starved, and executed an estimated 300,000 Timorese citizens – over two-thirds of the population. On the thirtieth of August 1999, the United Nations (UN) supervised a popular referendum asking the people of Timor-Leste whether they wanted special autonomy within Indonesia, or not; a “No” vote, against special autonomy, was in essence a vote for outright independence. An overwhelming majority of the people of Timor-Leste (78.5%) voted “No”. Within hours of the final tally, violence broke out. Between the referendum and the arrival of a multinational peacekeeping force in late September of 1999, pro-Indonesian Timorese militias (organized, trained, and explicitly supported by Indonesian military), and the Indonesian military itself, commenced a countrywide scorched-earth campaign of retribution. They killed approximately 2,000 Timorese – foreigners and journalists as well – and forced nearly 300,000 people into Indonesian West Timor as refugees while displacing over two-thirds of the population. The rampage destroyed the bulk of the country’s infrastructure. Homes, irrigation, water supplies, schools, government buildings, banks, stores of all kinds, and nearly 100% of the country’s electrical grid were all ruined. Formal institutions and governance structures disappeared almost literally overnight.
On the twentieth of September 1999, Australian-led peacekeeping troops of the International Force for East Timor (INTERFET) deployed to the country and terminated the chaos and violence. On the twentieth of May 2002, after 3 years of UNTAET governance, Timor-Leste was formally recognized internationally as an independent state.
This paper focuses on local dispute resolution mechanisms (LDRM institutions – or alternative community ‘court’ system – a sample is attached as Appendix 1. It is strongly recommended it be read for context beforehand) in the young country of Timor-Leste, a society in which nearly 70% of the population live outside major towns in remote villages (Sucos) and hamlets (Aldeia). These institutions are considered transitional because they
1 Piers Pigou. “The Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation”. (UNDP, April 2004), p. 26. Archived on JSMP website. (Pig<http://www.jsmp.minihub.org/Reports/otherresources/UNDP_ReportOnCRP%5B1%5D.pdf> (Accessed March 6, 2006)ou)
have failed to evolve to fulfill the roles expected of formal justice institutions and are considered ‘inefficient’ by formal institution standards. For those within such communities however, they clearly serve an important purpose. Past and present formal institutions, which have sought/seek to usurp and eradicate the informal institutions of Timor-Leste – without success – attest to this. Despite efforts to repress, replace, and in the case of Indonesian occupiers, eradicate LDRMs, they are still firmly in place and retain considerable legitimacy for many Timorese; customary institutions in Timor-Leste have actually increased in popularity.
The main question: does imposing a UN-sanctioned ‘best practice’ justice institution in Timor-Leste ultimately require extinguishing LDRMs to begin clean-slate, or is it possible to maintain LDRMs and use them in conjunction with formal ‘best-practice’ institution?Based on historical precedent in Timor-Leste, it is likely wiser to maintain well-used LDRMs in a harmonious co-existence with the formal system. Despite being termed transitional, and perhaps a ‘dead-step’ on the institutional evolutionary ladder, there is no reason Timorese LDRMs must be extinguished; rather formal and traditional systems might both be better served if they existed side-by-side in support of one another.
2 Pigou, p 24.
3 Butt, Simon, David, Natalie, and Laws, Nathan. Looking Forward: Local Dispute Resolution Mechanisms in Timor-Leste. Australian Legal Resources International: produced for The Asia Foundation in Timor-Leste (1st Ed. 2004). (Publication pending- source available from author upon request) p. 105-106. (ALRI Report)
4 Pigou, p 7, quoting, Soares, Dionisio da C. Babo, A Brief Overview of the Role of Customary Law in East Timor, paper presented at a symposium on East Timor, Indonesia and the Region organized and sponsored by the Universidade Nova de Lisboa, July, 2000 at 9-10.
5 This question is posed by Mearns in his survey of Timorese justice possibilities. Mearns, David. Looking Both Ways: Models for Just ice in East Timor. Australian Legal Resources International (November, 2002) p 4. (Mearns Report)
<http://www.jsmp.minihub.org/Traditional%20Justice/Reports/Mearns%20Looking%20Both%20Ways%20Report/Mearns%20Looking%20both%20ways.pdf> (Accessed March 6, 2006)
The current post-independence government, after conducting a countrywide consultation in 2002, outlined economic development (the issue of development is dealt with below) and poverty reduction as the main concerns for Timor-Leste and its people. Various indicators show much remains to be done:
•Per capita GDP (PPP): US$370 or US$1.01/per day
•44% of the population subsists below $1 per day
•HDI Ranking: Timor-Leste 140/177 countries
•The unemployment rate is about 30% in urban areas. Reductions in the number UN personnel and employment have contributed to increased unemployment in Dili and other areas where UN activities were prominent.
•Surprisingly, despite poor economic situation and widespread poverty, a recent report ranked Dili as the eighth most expensive city in Asia – above Singapore and Beijing – attributed largely to the sizeable international presence and its thirst for imported goods.
•64% of the population suffers from food insecurity
•The underweight proportion of the under-five population is 46%, with 49% being ‘too short’ or stunted in growth. A further 28% are considered severely malnourished.
•75% of people in urban areas and 51% in rural areas have access to safe drinking water. Access to sanitary disposal by urban and rural areas is currently at 55% and 13% respectively.
•International assistance decreased to approximately US$160 per capita in 2005 from US$300 in 2002. More than half of the development assistance has gone toward salaries and/or fees to international staff and experts, leaving little for beneficiaries.
•Small-scale investments have materialized in agriculture and service sectors, but no major foreign private direct investments have been made in processing industries.
6 Note: Ranking would likely go down if indicators were complete. GDP/Capita data is missing from HDI report 2005 for Timor-Leste. A national estimate of $1,033 (PPP US$) was used, but this number is 3 times higher than the UDNP’s own numbers in the MDG report, and likely too high. Human Development Report 2005 International cooperation at a crossroads: Aid, trade and security in an unequal world. United Nations Development Program in Timor-Leste (UNDP 2005).
<http://hdr.undp.org/reports/global/2005/pdf/HDR05_HDI.pdf> (Accessed March 9, 2006)
7 Lusa: “Report shows Dili is 8th most expensive city in Asia.” Selected Postings from East Timor. East Timor Action Network (ETAN) (August 2005)
<http://www.etan.org/et2005/august/7/08report.htm> (Accessed March 6, 2006)
8 Unless noted otherwise, all bullets sourced to: “Timor-Leste Millennium Development Goal 2005: Where are we now?”
<http://www.undp.east-timor.org/undp/pdf_files/reports_documents/MDG_Booklet%20FINAL.pdf> (Accessed March 6, 2006)
WORKING DEFINITION & INSTITUTIONS
While there are various views on how and why institutions are important for development, there is little debate that they are important. The lack of fully functioning formal institutions is (and will be) therefore a key stumbling block for Timorese development at the national and international level. While the formal justice system is being established and strengthened, LDRMs are filling the gap, sometimes for good, others for bad.
North defines institutions as humanly devised constraints that structure political, economic, and social interaction. They are not necessarily formal, but may consist of unwritten rules and taboos, and serve to create and maintain order and stability. North’s definition of ‘institutions’ is perhaps too broad; Edison’s ‘intermediate’ definition refines institutions to also include property rights protection and the degree to which laws and regulations are fairly applied (rule of law). For the purposes of this paper, the definition is focused on rule of law institutions and further to LDRMs in the Timorese context. LDRMs fit neatly into North’s category of informal institutions using largely unwritten rules and taboos, while dealing with many of the same substantive issues defined by Edison, chiefly enforcement of property rights and maintaining the rule of law.
North also argues institutions evolve. History, to him, is a story of institutional evolution, which can only be understood as part of a sequence. The ultimate results of
9 For an overview of the argument for institutions and development see: Hali Edison. “Testing the Links: How Strong are the Links between Institutional Quality and Economic Performance?” Finance and Development 40(2) (June 2003), p 36, box 1, and also: Douglas C. North. “Institutions”. Journal of Economic Perspectives, Vol. 5, No. 1 (Winter 1991).
10 Douglas C. North. “Institutions”. Journal of Economic Perspectives, Vol. 5, No. 1 (Winter 1991), p. 97. (North)
11 Hali Edison. “Testing the Links: How Strong are the Links between Institutional Quality and Economic Performance?” Finance and Development 40(2) (June 2003), p 36, box 1.
12 North, p 98.
this evolution are institutions that raise the benefits of cooperative solutions or those that raise the cost of defection and are otherwise ‘efficient’. Those institutions failing to evolve are developmental failures, but do not necessarily need to disappear (e.g. the Suq, which co-exists with formal institutions). His examples of evolved and efficient institutions are those found in the Western world, or ‘best practice’ institutions, while non-evolved are the traditional-type involving high transaction costs.
Qian contributes to institution theory by enumerating functions that ought to be performed by efficient institutions, as espoused by international economists. Like Edison, she notes that institutions should secure private property rights, protect them by rule of law, impartially enforce contracts through an independent judiciary, and ensure regulations favouring competition. She posits this belief exists because these institutional functions can be found readily in most developed countries, and thus are thought to be ‘best practice’ institutions. They may be used as benchmarks from which to judge and compare developing and transitional economies; when this comparison is undertaken, she feels it is obvious deficiencies will be found in non-best practice alternatives. She notes the deficiencies serve three purposes: to diagnose the deficiencies in those institutions, to explain poor economic performance, and to consequently generate recommendations for building/strengthening the deficient institutions. She states that these deficiencies do not provide enough information on their own to explain development or the lack thereof; other factors are in play. Qian does not deny ‘best practice’ institutions are desirable, tacitly supporting upward institutional evolution theory, but states first: the transition
13 North pp. 97 & 98.
14 Qian, Yingyi. “How Reform Worked in China?” In Dani Rodrik, ed. In Search of Prosperity. Analytic Narratives on Economic Growth (Princeton University Press 2003). Pp 297-334. (Qian)
process itself, that is progress toward ‘best practice’, should itself be looked at, and second: that on occasion transitional institutions prevails, sometimes for the greater good, sometimes not. Her question is not what is desirable in a situation, but rather what is feasible. While Qian acknowledges countries in transition (economic or post-conflict) generally lack solid institutions and must use what is feasible, implicitly these institutions are but steps upward in the eventual evolution to ‘best practice’ institutions; their inefficiency requires this in the long run. She notes that though they should be evolving to a more efficient format, they may become ‘stuck’ if those who benefit from the system resist change.
Fusing North and Qian’s thoughts, we are left with an argument for the evolution of institutions to formal, efficient, Western ‘best practice’ models, while others remaining static are ‘dead’ on the evolutionary ladder. Neither author questions whether the ‘best practice’ model is truly the best and most efficient in cross situations, but both would agree that transitional models are not the most desirable form in the long run. The logical conclusion for Timor-Leste’s LDRMs: because they are not as efficient as ‘best practice’ institutions, they should evolve to become more efficient, or skip a few evolutionary steps to be entirely supplanted by ‘best practice’ institutions, lest they ‘die’ on the ladder. The conclusion is subject to some qualifications.
While North argues institutions both direct and support development, he does not elaborate on potential side-stream capacities local institutions have. The potential functions LDRMs play weaken North’s premise that institutions will evolve in the name of efficiency or be replaced, especially if they perform important societal roles. For
15 North pp. 97 & 98.
example, an LDRM may be inefficient in fulfilling ‘best practice’ roles (fulfilling them nonetheless), but serve to reinforce local culture, strengthen interpersonal relationships, and/or serve other social functions. There is no reason an inefficient, yet socially useful, institution may not co-exist with, and supplement, formal institutions geared toward capitalist trade and development models, or simply exist alongside it. One system does not preclude the other. North seems to tacitly acknowledge this point; by noting various countries in which ancient systems are still used (e.g. the Suq). Because formal systems are also used in these countries, he is implicitly noting the co-existence of both systems. This point is of critical importance given the entrenched nature of LDRMs in Timor-Leste, and many other parts of the world.
Further, LDRMs may actually perform various ‘best practice’ type roles more efficiently than formal institutions when dealing with small issues in a community, and handling disputes formal courts simply cannot; efficiency is not necessarily universal for formal or informal systems. Consider enforcement of property rights: a well-used anecdotal example of LDRM efficiency in Timor-Leste concerns a woman and her stolen chicken. While both systems could resolve the chicken dispute, taking the matter to formal civil court would seem a waste of resources for all parties – the slow decision, transport to court (potentially days and hundreds of Kilometres), ensuring a defendant appears at a hearing, and the USD$75 court fee — all militate against the use of formal courts for such disputes.
16 Decree law no. 15/2003 on Court Fees imposed exorbitant fees on civil litigants, e.g., a non-refundable fee of 10% of the amount of damages sought and a fee of USD$75 for civil cases, excluding administrative and legal fees. This fee is outrageous given the $1.08/day income in Timor-Leste, effectively pricing the justice systems out of reach for the vast majority of the population.
While a formal court is likely more efficient in hearing complex disputes, (an opinion shared by the Timorese in recent survey results) what of the other ‘offences’ LDRMs deal with? Here is a brief list of some LDRM offences:
•Breaking an engagement without reason
•Involvement in any way with a marriage ceremony by someone who according to adat law is not authorized
•Letting cattle roam so that they damage crops or gardens
•Cultivating or using a paddy-field or a boat that has been banned from use by the ‘ruler’, without his permission
•Cultivating a paddy-field after the period allotted by the leader
•Planting rice twice in one year in the same field
•Sexual intercourse between people of the opposite sex who are not husband and wife
•False allegations of a village person against the village ruler
•Injustice by a village ruler to a village person
•Wearing unauthorised adat clothes or jewellery
•Felling and burning forests without permission from an authorized person
•A boy touching a girl
17 Law and Justice in East Timor: A Survey of Citizen Awareness and Attitudes Regarding Law and Justice in East Timor. The Asia Foundation (Dili, Timor-Leste, 2004). (TAFET Justice Survey) <http://www.asiafoundation.org/pdf/easttimor_lawsurvey.pdf>
18 These are examples from the Indonesian adat system, but are virtually identical in Timor-Leste. ALRI Report, p. 77.
•Associating with an engaged girl
•Re-marrying within the time of mourning
•Hanging-up abusive pictures
•Approaching a bathing place without calling out
•Unfair accusations of magic
•Unfair accusations of adultery
While some of these offences could be tried in a formal court (e.g. incest as a criminal offence), clearly some could not; how would a formal court deal with accusations of witchcraft or magic? Considering the culture-bound nature of the traditional crimes enumerated above, LDRMs (by default) are more efficient in resolving such issues than formal courts, as there is no formal institution capable of dealing with such issues. Even were a formal court to hear a case of “hanging-up abusive pictures” or “wearing unauthorised adat clothes or jewellery”, freedom of expression laws would likely lead to a decision in favour of the defendant, leaving the underlying issue at hand entirely unresolved.
Qian’s concept of feasibility is key to evaluating transitional institutions, regardless of their (in)efficiency. Her view is pragmatic and relativist, but her account of institutions developed in China omits some possibilities. She states that while institutions may be transitional because of their inefficiency, those with vested interests benefiting from the transitional institution may block reform and stall these institutions. This seemingly precludes the possibility that those with vested interests may be the very people benefiting from the system, otherwise stated, the system’s intended and actual users. If an institution is serving those it is intended to serve while benefiting those same people with a vested interest, then inefficiency seems almost irrelevant. Further, if there
19 Qian, pp 297-334.
are no other institutions capable of fulfilling the role the transitional institution is, then clearly what is feasible (e.g. fulfilling that role) must be considered desirable until (if, and when) another more efficient institution arises to fill the role. Building on North’s implicit suggestion that formal and informal institutions may exist side-by-side, Qian does not acknowledge the possibility for transitional institutions’ to enhance the overall efficiency of a formal system, developed separately and leaving transitional institutions intact. Qian further states that entirely new institutions need not be established all the time, but rather existing institutions may be modified to achieve desired goals. Thus it could be that for a country in transition, LDRMs could be modified to co-exist with and support a formal system, or simply left intact alongside the formal, instead of being extinguished by it. Shweder’s neo-antiquarian concept, that new ideas (e.g. ‘best practice’ institutions) are not necessarily the best, completes the picture. 
Neo-Antiquarianism, Maladaptation, and Development
While the ideal is a perfectly efficient and effective justice institution, this simply may not be feasible due to scarce resources or subject matter. Following Qian, in a given situation that which is feasible, not necessarily best, may be what ought to be sought. If an “antiquarian” traditional LDRM is consistently used, is persistent, and operates on issues outside the formal sphere, then it likely qualifies as feasible. That they are capable of dealing both with issues formal mechanisms can and cannot, but faster and cheaper, perhaps further attests to LDRM feasibility. Through a neo-antiquarian lens, LDRMs are better than merely feasible; they are truly home-grown and not merely connected to a culture, but rather are that culture.
20 Shweder, Richard A.. “Moral Maps, ‘First World’ Conceits, and the New Evangelists,” in Laurence E. Harrison and Samuel P. Huntington, eds. Culture Matters. How values shape human progress (New York: Basic Books, 2000) Pp. 158-177.
This point must be qualified in two ways, however. While the neo-antiquarian view states, ‘new’ is not always superior to ‘old’, there is no guarantee that ‘old’ is superior to ‘new’. Edgerton broaches this issue in response to overly relativist anthropologists:
[T]raditional beliefs and practices may be useful, may even serve as important adaptive mechanisms, but they may also be inefficient,harmful, and even deadly.”
He terms this ‘maladaptation’. The main point: even if a practice exists within a culture this does not necessarily ensure it is well adapted and beneficial to that culture. There are certainly numerous examples of specific practices within Timorese LDRMs that seem blatantly maladaptive. For example, in one case involving witchcraft, an UNPol officer directed a deeply upset local who approached him with this complaint to deal with it in the traditional way. A man had accused the complainant’s daughter of witchcraft and cursing his family. The UNPol officer had no authority to deal with accusations of black magic. A few days later, the complainant returned and advised the UNPol officer that he had done as told, and dealt with the problem using traditional means; he killed the accuser. Another anecdotal example involving witchcraft and LDRMs resulted in draconian punishment; villagers fatally placed hot coals on the witch’s back for punishment. It should be noted that generally witchcraft punishments are not so severe, but that is not always the case; it depends on the ‘severity’ of witchcraft involved, or the degree to which the wrongdoer has disturbed the community’s system of
21 Edgerton, Robert B.. “Traditional Beliefs and Practices –Are Some Better than others?” in Laurence E. Harrison and Samuel P. Huntington, eds. Culture Matters. How values shape human progress (New York: Basic Books, 2000) p 131. (Edgerton)
22 Edgerton, pp. 126-141.
23 Mearns Report, p 46.
value-circulation and socio-cosmic balance. In other cases brought before LDRMs, from murder to adultery and land disputes, a perpetrator was simply required to compensate the victim. Generally this included first, food and drink to the LDRM witnesses, second, something to the Chefe, or adat/lisan leader for hearing and resolving the dispute, and third an animal, money, or some other material compensation to the victim to re-establish cosmological/community balance. This does not seem maladaptive. To discard an entire system because some aspects are maladaptive (namely the overly harsh punishments for unprovable crimes or overly light sentences for concrete criminal offences), however, is tantamount to throwing out the baby with the bathwater.
It should also be noted, Timorese-style LDRMs are not only present in Timor-Leste. A very similar process to Timorese lisan exists across Indonesia, called adat (this is discussed later on in the paper). This LDRM preaches reconciliation, harmony, community cohesion, and forgiveness, and shares many methods and punishments with the Timorese lisan system. The combination of isolation and collectivist culture in both Timorese and Indonesian villages requires smooth intra-community interactions. LDRMs in Timor, which foster the aforementioned values, seem adaptive. While there may be some maladaptive (self-destructive) aspects, they promote smooth community relations, which is vital in their respective environments. Following Edgerton’s maladaptive logic, to establish only a formal justice system incapable of performing the previously mentioned cultural functions efficiently (or at all) might itself be considered
25 A very detailed briefing of the cosmological and ancestral beliefs in Timor-Leste may be found in the source from which this concept was derived. See: Hohe, Tanja and Nixon, Rod. Reconciling Justice Traditional’ Law and State Judiciary in East Timor. United States Institute of Peace (January 2003) p 17 & 18. (USIP Report)
<http://www.jsmp.minihub.org/Traditional%20Justice/Reports/ReconcilingJusticeReport.doc> (Accessed March 6, 2006)
26 ALRI Report, p. 39.
27 The issue of intra-community relations is discussed by North, p 99.
maladaptive; there is no proof a Western-fashioned justice system is the pinnacle for the world’s ‘happy savages’ as it might be for formal economically integrated societies. It could prove destructive to Timorese culture and society.
This leads to the second qualification. The concept of development itself could be seen as repugnant for a ‘neo-antiquarian’ stance. Whether development should be undertaken at all is obviously a crucial gateway question before deciding how to undertake development and in what framework. The question of development and its legitimacy is answered directly by the President Elect of Timor-Leste in the preamble to the National Development Plan:
He further explains that
Under the leadership of the former guerrilla leader and current President of Timor-Leste, Kay Rala Xanana Gusmão, the idea that national development is a key goal has been firmly established through a nationwide consultation. The consultation was very comprehensive:
The aspirations of our people were gathered through a highly innovative and participatory countrywide consultation process, involving 980 community consultations within the 498
28 President Kay Rala Xanana Gusmao. Quoted in: “East Timor: National Development Plan”. Planning Commission, Dili (May 2002) p XVI. <http://www.undp.org.tl/undp/for_download/NHDR2006/TL-2006-Final.pdf> (Accessed March 15, 2006)
29 President Kay Rala Xanana Gusmao. Quoted in: “East Timor 2020 – Our Nation, Our Future.” Planning Commission, Dili (May 2002) p 3.
<http://www.undp.org.tl/undp/pdf_files/reports_documents/Our_Nation%20.pdf> (Accessed March 15, 2006)
Considering first the breadth of this countrywide consultation, and second the charismatic Xanana Gusmão’s overwhelming popularity with the electorate, debate over whether development should or should not occur is a point already settled. The country has resolutely embarked on a development path and a ‘neo-antiquarian’ view could prove a crucial guiding factor.
UNTAET AND THE FORMAL JUSTICE INSTITUTION
As Qian notes, international institution building focuses on Western-styled institutions. In Timor-Leste, improving the formal legal system was a primary focus of UNTAET (and subsequent UN missions), a path followed by the incoming Timorese Government. Both believed the legal system would be accepted and adopted enthusiastically by the Timorese people. Granted the administration was burdened with an immense workload in rebuilding literally the entire country, but work with the formal system was deficient:
30 “East Timor 2020 – Our Nation, Our Future.” Planning Commission, Dili (May 2002) p 2.
<http://www.undp.org.tl/undp/pdf_files/reports_documents/Our_Nation%20.pdf> (Accessed March 15, 2006)
31 ALRI Report, p. 106.
32 Dionisio Babo-Soares. “Comparing Experiences with State Building in Asia and Europe:
The Cases of East Timor, Bosnia and Kosovo. LAW AND ORDER: JUDICIARY DEVELOPMENT IN EAST TIMOR.” Council for Asia Europe Co-operation (CAEC)RSPAS (The Australian National University: Prepared for the conference on Comparing Experiences with Post-Conflict State Building in Asia and Europe in Denpasar, Bali-Indonesia, 15 – 17 October 2001) p 6.
<http://www.caec-asiaeurope.org/Conference/Publications/soareslaw.PDF> (Accessed March 6, 2006)
The Timorese were unfamiliar with formal justice concepts because they avoided the Indonesian system. The incoming formal system simply did not possess the resources to assert itself in remote districts, partly because of the complete lack of infrastructure and police presence.
Despite these problems with the formal system, the local population’s acceptance of LDRMs, the predictable surge of use in the absence of a formal system, and widespread ad hoc usage by UNPol officers to maintain the peace, UNTAET remained unconvinced and did not consider LDRMs a legitimate alternative. In the words of one UN Political Affairs Officer, the feasibility of persuading UNTAET to consider LDRMs as transitional justice institutions was virtually non-existent. Speaking of efforts to do so:
UNPol officers in the field learned quickly that they were more likely to maintain peace and order by working through local leaders. Therefore, on their own initiative (often unbeknownst to UNTAET) utilized and facilitated local dispute resolution, further explaining their expansion. Even since the formal system has been firmly established, it suffers serious deficiencies:
33 ALRI Report, p. 106.
34 USIP Report, p 2.
35 Mearns Report, pp 38 & 39.
36 ALRI Report, p. 106.
37 Quoted in: USIP Report, p 39.
38 Mearns Report, p 39.
39 Unless noted, all bullets sourced to: “The Role, Practice and Procedure of the Court of Appeal.” JUDICIAL SYSTEM MONITORING PROGRAMME-PROGRAM PEMANTAUAN SISTEM YUDISIAL (JSMP Report, Dili, Timor-Leste 28 June 2005). <http://www.jsmp.minihub.org/Reports/jsmpreports/Report%20on%20Court%20of%20Appeal/Court%20of%20Appeal%20report%20(e).pdf> (Accessed March 6, 2006)
- The only court to sit consistently is the Dili District Court. The initial absence of courts in far-flung Districts has now been replaced by sporadic, unpredictable sittings. Because of the unpredictability, judges, prosecutors, defendants, and claimants have all missed court dates
- Judges, Public Defenders, and Public Prosecutors are still short on resources and proper training (few Timorese have the appropriate skills after independence), have extremely heavy workloads partially due to members consistently being sent for training in Portugal (7/22 judges per year and constant in country training for all court staff).
- International judges filling the gaps in Timorese justice are constrained first by language requirements to Portuguese speaking countries, and second by relatively short contracts, impeding ‘judicial notice’ of the situation in society outside the court. Further, the legislation being used (a hodgepodge mixture of Indonesian Penal law, UNTAET regulations, Timorese Law, and International law) is confusing and does not necessarily reflect the realities of Timor Leste
- Difficulties in obtaining appropriate skills transfers from international advisers due to language constraints and unfamiliarity with alien legal concepts
- Lack of communication of decisions between District and Court of Appeals, making rule of law vague
- The Court of Appeal (highest court right now) took an 18-month hiatus, leading to huge increase in number of pending cases
- The Supreme Court, provided for in the Constitution as the highest court in the land, has yet to be established, eliminating an avenue of appeal for users
- The courts remain entirely reliant on the international donor community for funding (this will change with major oil extraction revenues pending)
- Poor planning and oversight of the judicial sector in general
40 Zifcak, Spencer. Restorative Justice in East Timor: An Evaluation of the Community Reconciliation Process of the CAVR (Commission for Reception, Truth and Reconciliation in East Timor). The Asia Foundation (2004). (Source available from author) p 42 & 45. (Zifcak)
41 “Judicial Notice”: The authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rainfall and temperature records, known historic events or the fact that ice melts in the sun. Cultural factors are also included (author’s addition)
Definition from: Law.com (2006)
<http://dictionary.law.com/default2.asp?selected=1065&bold=||||> (Accessed March 13, 2006)
42 ALRI Report, p. 9.
43 Ibid, p. 17.
44 Ibid, p. 9.
45 Judicial Systems Monitoring Programme (JSMP), An analysis of a Sexual Assault Decision from the Dili
District Court, Dili, Timor Leste (JSMP, July 2004). <http://www.jsmp.minihub.org/Reports/jsmpreports/An%20Analysis%20of/An%20Analysis%20of..(e).pdf> (Accessed March 13, 2006)
- The situation in Baucau (2nd largest city about 100KM East of the capital, Dili) was dire. Two of four judges were sent to Portugal in 2003, while a third required maternity leave. The Court’s record in dealing with cases had been good with hearings three days a week, but the remaining judges decided they could no longer function effectively and returned to Dili. As one judge explained, “[w]e were provided with a building, yes, but we had no telephone, no internet, no transport, not even the toilet was installed. So we had no option but to return home to Dili.” 
These problems coupled with the lack of faith in the former Indonesian justice system, perceived largely as corrupt, has had predictable consequences, including the resurgence of LDRMs already mentioned.
In effect, the formal system, while designed with efficiency and efficacy in mind, its own inefficient functioning has created a sphere of efficiency outside its purview. It is more efficient for disputants to work outside the system through LDRMs for many conflicts, even though some certainly should have gone through formal courts. While perhaps not perfectly efficient in their own right, when viewed beside the malfunctioning formal system, LDRMs become very attractive and comparatively efficient in their own domain.
The upsurge in LDRM usage has various impacts on the formal system. First, LDRMs siphon cases (for better or worse) that ordinarily would have gone through the formal system and deal with them faster. Formal courts are relieved of the extra caseload, increasing its efficiency, allowing resources to be dedicated to the most serious cases.
Second, LDRMs promote reconciliatory resolution of disputes, meaning grudges and feuds can be defused at their source before escalating into subsequent violent problems. The unauthorized cutting down of a communal fruit tree for firewood, for
47 Secondary source quoted in: Zifcak, p 42.
example, can be addressed quickly and effectively by an LDRM, instead of flaring into a violent intra-community dispute. In the absence of LDRMs, formal courts would have to deal with the consequences of problems (potentially violence stemming from the initial dispute) while leaving the underlying problem (compensation for cutting the tree down and re-balancing community relations) untouched.
Pushing this point home, UNPol officers in the field gave priority to the avoidance of any potential escalation of a dispute into a serious violent confrontation. It was deemed important to all concerned that a quick and visibly just resolution to such situations be achieved so social life could return to normal. The formal judicial process could not provide a quick outcome and neither the police nor the local people trusted that it would produce a just one in their terms; LDRMs are perceived to be accessible and quick operators, while remaining sensitive to local social contexts and concerns. Thus, LDRMs were used to achieve what the formal system could not. The volatility of the population and their propensity for violent response was a constant theme for UNPol officers. The availability of machetes and katana meant that unresolved issues turned violent could easily turn deadly as well.
Even when formal courts are used, they are zero-sum, confrontational, and focused on retribution, not reconciliation or restoration. It should be borne in mind that given the village culture, those involved in disputes are almost invariably neighbours who must live beside one another after a case is decided. In a post-conflict environment,
48 Mearns Report, pp 39 & 40.
50 Def: Large traditional Timorese knife.
51 Mearns Report, p 40.
grass-roots conflict prevention and de-escalation is crucial to avoid violent relapses into chaos and to avoid sundering vital village-based social relations.
Would a fully functioning formal system reduce the usage of LDRMs by eliminating the need for them? The most recent survey conducted on Timorese awareness and attitudes toward law and justice in Timor-Leste (December of 2002) suggests otherwise and returned some interesting findings. First, the majority of Timorese are aware a formal justice system exists. Second, surprisingly a full 70% of Timorese felt the formal legal system in Timor-Leste works well, while 81% are confident in the formal courts (versus 94% confident in the lisan LDRM process, described in Appendix 1); despite all the problems with the formal courts, listed above, people know the formal system exists, have confidence in it and its functioning, but are still not using it. The survey sheds some light on why.
The top reasons people opt for LDRMs instead of formal courts are as follows: 1. The matter was too small (44%), 2. LDRM method saves faces, avoids embarrassment (30%), 3. LDRMs are how the community always settles disputes (28%), and 4.) LDRMs require less travel (22%).
Conversely, the top reasons people go to formal court are: 1. Thought they would get a fair decision (56%), 2. It was a serious matter (34%), and 3. Had no choice, forced to go (30%).
52 For the importance of intra-community relations, See North, p 99. These needs are made ever more important in post-conflict settings.
53 TAFET Justice Survey, pp 2 & 3.
54 Ibid, p 55.
55 Ibid, p 65.
56 Ibid, p 67.
The statistics paint an interesting dichotomy between the courts- they seem to operate on different levels; 83% were satisfied with lisan process, versus 80% satisfied with formal courts. Overall, the survey findings reveal the Timorese concept of a justice system incorporates both LDRMs and the formal legal system. Broadly speaking, for minor offences (or offences/complaints not covered by formal court statutes) people use LDRMs while for more serious issues (murder, and contract issues) they see the formal system as more appropriate. LDRMs are used in particular for intra-village or family issues (such as theft and divorce) while the formal system is seen as the right forum for disputes involving outsiders, business, government, or violent crimes. The dichotomy revealed by the survey can be explained in terms of each institution’s ability to deal with certain problems efficiently; the formal is more efficient in dealing with complex, valuable disputes while LDRMs are more efficient dealing with lesser disputes at the community level.
The degree of confidence, use of both systems, and mutual benefits between systems demonstrates that it is feasible for LDRMs and the formal system to operate concurrently and harmoniously. This is not to say that there are no problems with the LDRM system, some of which were noted in addressing potential maladaptive practices.
ISSUES AND LEGALITY OF LDRMs
While LDRMs are currently being used in conjunction with the formal system, there are some issues and considerations in determining whether they might continue to do so in their present form.
57 Ibid, pp 69 & 73.
58 Ibid, pp 2.
59 Ibid, p 2.
60 Ibid, pp 2.
Section 2.4 of the Timorese Constitution notes:
[t]he The state shall recognise and value norms and customs of Timor Leste that are not contrary to the Constitution and to any legislation dealing specifically with customary law
This is important because it requires acknowledgement and recognition of custom by the formal system. It is an acknowledgement of the importance of traditional norms and customs, but qualifies this only insofar as they are consistent with the formal system’s requirements (the Constitution). LDRMs, therefore, cannot be used in contradiction of the Constitution if they are to become officially recognized and accepted by the formal system. However, because they currently operate outside the scope and authority of the state/state actors, they need not comply with Constitutional requirements; residents may simply opt to avoid engaging state actors, therefore without invoking Constitutional requirements or standards.
Section 123.4 clearly states, however, that the prospect of bringing LDRMs under state control was considered in the drafting process:
The law may institutionalise means and ways for the non-jurisdictional resolution of disputes.
It is incumbent upon a state to uphold its citizens’ Constitutionally guaranteed rights. These rights include access to justice:
Access to courts is guaranteed to all for the defence of their legally protected rights and interests.
Justice shall not be denied because of insufficient economic means.
To indirectly violate these rights because formal courts are overburdened or unable to hear many cases dealing with issues not within the court’s purview is likely in
61 Constitution of the Democratic Republic of Timor-Leste (May 20 2002) Part I, Section 2.4. (The Constitution)
<http://www.constitution.org/cons/east_timor/constitution-eng.htm> (Accessed March 13, 2006)
62 The Constitution, Title V, Section 123.5.
63 The Constitution, Part II, Title I, Section 26.
violation of the Timorese Constitution. In light of the apparent willingness to recognize LDRMs, they provide a good opportunity to guarantee access to justice.
For this to occur, there are various Constitutional rights applicable to LDRMs that need to be upheld to formally institutionalize LDRMs as viable state endorsed ADR mechanisms.
For example, every Timorese citizen has equal rights and duties with respect to all matters relating to family, political, economic, social and cultural life, as well as the “right to be free of cruel and inhuman treatment” , “the right to harmonious development of the individual within the family in a marriage based on consent and equality between spouses” and, “an equal right to property”. Section 28 also grants all Timorese citizens the right to disobey illegal orders or orders that impinge their fundamental rights, freedoms and others guaranteed in the Constitution, meaning the freedom to disregard LDRM decisions if formally institutionalized and failing the above requirements.
Some further considerations for LDRMs include UNTAET regulations pertaining to criminal justice (which remains in place until supplanted by Timorese a law which has been forthcoming for over 4 years). Section 2.1 of UNTAET Regulation 2000/30 states:
All persons shall be equal before courts of law. In the determination of any criminal charge against a person or of the rights and obligations of a person in a suit of law, that person shall be entitled to a fair and public hearing by a competent court …
Section 2.2 further states:
Criminal Justice shall be administered by the courts according to the law. No person may be subject to any kind of punishment except under the provisions prescribed by the law.
64Ibid, Section 17.
65 Ibid Section 30(4).
66 Ibid Section 39.
67 Ibid Section 54
68 Ibid Section 28.
69 REGULATION NO. 2000/30 ON TRANSITIONAL RULES OF CRIMINAL PROCEDURE. UNTAET/REG/2000/30 (25 September 2000) Section 2.1
<http://www.un.org/peace/etimor/untaetR/reg200030.pdf> (Accessed March 13, 2006)
Every person shall be presumed innocent of a criminal offence until guilt is established by a final decision of a court.
And the Timorese Constitution itself mandates:
No one shall be subjected to trial except in accordance with the law.
And finally, Section 9.2 & 9.3 of the Constitution state:
2. Rules provided for in international conventions, treaties and agreements shall apply in the internal legal system of East Timor following their approval, ratification or accession …
3. All rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid.
This requires the conduct of a trial comply not only with all minimum requirements explicitly established under the Constitution, but also those existing in international legal instruments, notably the requirements under Section 14 the already-ratified International Covenant on Civil and Political Rights (ICCPR). These rights generally include the presumption of innocence, representation by a lawyer, hearing and defence in criminal proceedings, and the use of appropriately obtained evidence.
CONCLUSION & PRECEDENT
All told, the current LDRM system may not uphold all these guarantees, and seems to be precluded from hearing cases of a criminal nature (crimes against the state, mandating state action against an accused) but for now, LDRMs are non-state actors and therefore not subject to these or other procedural requirements (perhaps partially explaining LDRMs’ efficiency for lesser offences). If LDRMs are to be formally recognized, then clearly some legislative tinkering will have to be done to ensure adherence to the minimal
70 Ibid, Section 2.2
71 The Constitution, Section 30.
72 Ibid, Section 9.2 & 9.3.
73 Ibid, Section 34.
procedural requirements, particularly those regarding punishment. This will be a matter for further consultation and resolution by the Timorese themselves.
However, for now, LDRMs remain functional and more efficient than the formal Timorese courts in resolving many disputes and their underlying causes. What has developed in Timor-Leste aptly shows North’s implicit thought that the sequential evolution of institutions need not occur; two institutions, formal and informal (a dead development end), may continue side-by-side without detracting or destroying one another, perhaps helping one another instead. Qian’s view that LDRMs are transitional because they inefficient at deciding certain cases does not hold if they remain efficient in their own right for the users, e.g. those benefiting from the system. Apart from the Constitutional requirements imposed by the state, LDRMs are feasible. Shweder’s neo-antiquarian view allows the possibility of the LDRM system of being formally recognized. This must be qualified, as certain aspects seem maladaptive, but those aspects alone are insufficient grounds to abolish the entire system (likely impossible regardless).
It should be noted that this type of dual-formal-informal justice institutional arrangement is not without precedent, especially among Timor-Leste’s close neighbours.
For example, in the Philippines, the Barangay justice system is a state-recognised LDRM. Village disputes must be resolved by mediation or arbitration conducted by the village head or a village-level panel before being brought before a state court. Decisions made or settlements reached are binding on the parties and enforceable by the state. The Barangay system is accepted and practiced in around 41,943 villages in the Philippines.
74 Using Traditional Practices to Improve the Justice System: The Barangay Justice System. (The same website provides resources on how and where restorative/traditional justice is being used across the planet)
<http://www.restorativejustice.org/editions/2004/June/traditional> (Accessed March 15, 2006) & ALRI Report, pp 83-89.
Adat law in Indonesia is not only pervasive, but sanctioned and applied by the state. Adat disputes may be resolved in a number of ways in Indonesia, but the most common option is informal mediation or LDRM by a village head or board at the local level. While practices vary across the Indonesian Archipelago, LDRM settlements can be taken to a judge and ratified, provided the settlement does not conflict with state law (e.g. a criminal offence carrying a minimum sentence requirement). Indonesians can also take an adat dispute straight to state court. That court is required to urge the parties to settle before the hearing. Barring a preliminary settlement, the court is required to apply the relevant adat law/s to resolve the dispute, again provided the dispute is not covered by state criminal law.
Closer to home, aspects of LDRMs have been ‘formally’ used in Timor-Leste proper. The restorative and reconciliatory aspects of LDRMs played a significant role in the post conflict reconstruction of social relations. Those Timorese returning from West Timorese Indonesia after having joined (or having been forced to join) the Indonesians as militia members in the 1999 post-referendum rampage needed to be reintegrated before returning to their villages. Given the close-knit village based nature of Timorese societies, smooth neighbourly relations are paramount to one’s existence; it seems inconceivable that a community could accept and reintegrate a person that had personally killed their livestock and burned their house down. Yet the LDRMs in Timor are so effective that it has proved more than conceivable. Examples of this include the Commission for Reception, Truth and Reconciliation in East Timor (CAVR), which incorporated aspects of the nahe biti  ritual from Timorese LDRMs to facilitate ex-
75 The following is a summary of the ALRI report’s description of adat law in Indonesia, ALRI Report, p 73-83.
76 Def: nahe biti/biti boot can be translated as stretching or ‘laying down the mat’ (biti boot=big mat) as a means to facilitate consensus, or reconciliation, among parties. For an in depth description of the ceremony, see: Dionısio Babo-Soares. “Nahe Biti: The Philosophy and Process of Grassroots Reconciliation (and Justice) in East Timor.” The Asia Pacific Journal of Anthropology. Vol. 5, No. 1, (April 2004), pp. 15-33
<http://journalsonline.tandf.co.uk/media/3d1xhxywwk4wwn2jqjft/contributions/l/8/3/j/l83j75mtrmy44vnt.pdf> (Accessed March 15, 2006)
militia reintegration. More recently, Indonesia and Timor-Leste have initiated a Commission of Truth and Friendship (CTF), which borrows heavily from traditional dispute resolution methods common to both nations. The CTF is a non-binding, full amnesty inquiry. The goal is not retribution, but restoration and reconciliation. To that end, the CTF will establish the truth behind atrocities committed in Timor-Leste under the Indonesian occupation and not seek retribution for them. While this flies in the face of the Timorese governments broadly professed respect for international human rights (entrenched in the Constitution) and the INGO community which is ‘crying foul’, it will nonetheless likely result in a better relationship with Indonesia in terms of trade and ultimately joint development possibilities for the island of Timor. The CTF is far from perfect and has many detractors, but it certainly builds upon the culture of pacific traditional dispute resolution underlying both Indonesian and Timorese cultures.
Finally, many other formal legal systems struggle under huge caseloads. In reaction, attempts are being made to create ADR systems to lessen the burden; Canada is a country at the forefront of the ADR movement. Timor-Leste has a tremendous
77 Both sides committed atrocities during the occupation, perhaps explaining why the Timorese leaders have not been anxious to begin a formal international criminal tribunal for the events. Under international law, Timorese leaders involved in violations of international human rights while still a guerrilla group can now be held accountable because they are part of a national government.
International Law Commission- Draft Articles on the Responsibility of States for Internationally Wrongful Acts. 2001. Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10)
1. The conduct of an insurrectional movement which becomes the new government of a state shall be considered an act of that state under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new state in part of the territory of a pre-existing state or in a territory under its administration shall be considered an act of the new state under international law.
advantage over other nations attempting to redirect a litigious culture toward a new ADR culture. The underlying mentality and culture of restorative justice in Timor-Leste already exist and therefore the culture does not need to be ‘created’ as it may in countries possessed only of formal justice systems. This is clearly an advantage and should not be wasted.
LDRMs require some fine-tuning to bring them in line with Timor-Leste’s Constitution. The end result of this fusion will not be a significant change in the actual functioning of the Timorese legal system, but will result in overall greater efficiency for formal and informal justice institutions in Timor-Leste while retaining a strong connection to the cultural values and norms so recognized in the Timorese Constitution, and consequently, by the people of Timor-Leste.
APPENDIX 1: Local Dispute Resolution Mechanisms in Timor-Leste 
The people of Timor Leste can utilise local dispute resolution, as a precursor, or as an alternative, to formal system. Given the problems with the formal system, it is not surprising that most Timorese choose local mechanisms for most disputes. What follows is a generic description of the processes used by many LDRMs, derived from research. It is intended as a very general introduction to LDRMs and does not purport to accommodate regional variation that we understand exists in Timor-Leste.
A victim or plaintiff can report an offence or wrongdoing to the sub-village head or his staff. At least in cases which involve disagreements between parties rather than the commission of a serious act, the lisan head will usually encourage the parties to resolve the dispute themselves or attempt to assist the parties to negotiate an informal and immediate resolution. Family members are strongly encouraged or even expected to settle disputes between themselves without resort to the village system, often with a bottle of distilled palm wine – tua.
If negotiation fails, or if it was inappropriate given the seriousness of the alleged crime or act, the lisan head then sets a date for a hearing and orders one of his staff (the manu ain – literally chicken’s foot which refers to the informant/courier, etc) to inform the parties, their families and the general community of the date and place of the hearing. On the date determined by the lisan chief, a mat or a number of mats are rolled out, at the place where the dispute will be resolved. This is known as unrolling the mat – buka tikar [in Indonesian, nahe biti ceremony in Tetun] – which is used to seat all those who attend. Lisan leaders, the parties, their families and members of the community, will usually attend to witness the resolution of the dispute. The lisan head will usually state the procedural rules for the process near the beginning of the meeting.
These rules vary from place to place, but generally no one is permitted to talk at the same time as another person. The decision-maker was also required is required to give both parties time to speak and to listen to what is said, but it was unclear whether this bears the authority of a procedural ‘rule’, or is just a custom or commonly occurring feature. Lisan figures lead the questioning of the parties and any witnesses. They will often provide moral advice and refer to the lisan principles that have allegedly been breached. They will also often take the opportunity to warn other members of the community to refrain from committing the same act as the perpetrator(s). Members of the community are often permitted – even encouraged – to contribute to discussions which take place during the hearing. In some cases, representatives from the Government and the church attend and are involved in the process.
78 The following is an excerpt from: Butt, Simon, David, Natalie, and Laws, Nathan. Looking Forward: Local Dispute Resolution Mechanisms in Timor-Leste. Australian Legal Resources International: produced for The Asia Foundation in Timor-Leste (1st Ed. 2004). (Publication pending- source available from author upon request) p. 9-11. Reproduced here under fair-usage rules, and only intended to describe the Timorese LDRM process. Citations for passage have been removed.
Punishments are then discussed and negotiated. Penalties for a wide variety of crimes are usually in the form of the provision of animals, money or clothes to the ‘victim’ or plaintiff, and their family. Severe penalties can be handed down for serious offences. For example, in one village, a lower-level tribunal attempted to have a person hanged for adultery. Perpetrators must often pledge to not repeat their wrongdoings and are usually warned that a heavier punishment will be imposed upon them if they repeat the offence. The lisan chief who hears the dispute will often receive payment (usually in the form of an animal) for his work, typically provided by the perpetrator. The unsuccessful or guilty party is frequently required to provide food for everyone who attended the hearing – usually a buffalo or a pig, rice and tua.
There appears to be a right of appeal from the sub-village to the village level LDRM in most cases. According to the documents, the procedures and processes used and employed in both levels are quite similar.
LDRMs clearly have many advantages over the formal system … Generally speaking the LDRMs of Timor Leste are cheap, bureaucracy-free and quick to resolve cases. They tend to promote reconciliation, mutual respect, harmony, and a sense of community values apparently held by many villagers. Local decision makers are perceived to be better equipped to generate more regionally appropriate decisions. LDRM processes, it is often said, bring the disputing parties, and sometimes even the whole community, closer together. Referring disputes outside the community to the formal system usually has the opposite effect.
Despite these perceived benefits, the LDRMs suffer from a number of serious problems that are discussed in detail throughout this report. First, it is sometimes claimed that LDRM decision-makers can be politically motivated, biased, or corrupt. Second, because the law applied is not written, many LDRM users are concerned that its outcomes are less predictable than those of the formal legal system. Third, LDRMs are often criticized for lacking clear appeal mechanisms and for processes, decisions and punishments that violate international human rights standards. Finally, LDRMs are often said to lack the means to handle cases of domestic and sexual violence against women and children, and cases involving other vulnerable groups appropriately.
However, LDRMs appear to work adequately in many cases and the failing formal legal and judicial system has left most Timorese with no alternative but to rely on them. It should be noted that although based on unwritten customary practices, LDRMs, particularly those resolved through lisan, base their decisions mainly on unwritten “laws” narrated by the lia-nain or people with certain degree of authority in the traditional sphere.
Successful reform of the formal system could possible take years or even generations. Until an effective formal legal system is more accessible to all Timorese, LDRMs will continue to be the main fora for conflict resolution in most areas of Timor Leste. Any attempts to suppress local mechanisms are likely to drive them underground. It may therefore be preferable not to reform customary legal practices, but to adopt a mechanism
to fill gaps in the traditional system, such as implementing an appeal mechanism for processes, decisions and punishments that violate international human rights standards.
LDRMs fulfil an important role and continue to be meaningful and relevant to Timorese communities. Their strengths should be maintained and developed, and their weaknesses reduced and regulated in an inclusive, sensitive, and appropriate manner. Such changes will require legislative reform or adjustment as LDRMs are currently being employed to resolve cases beyond their constitutionally and legally permitted mandates….
[g]iven this country’s past history, we face the fact that our institutions and our people are inadequately equipped with the skills required to deal with more complex issues related to economic and social development of our country. Enhancing skills and building human capabilities of the poor is particularly important and can have a major impact on their productivity and human dignity. (italics mine)
[o]ver the past twenty-five years, independence has been our dream for the future. But raising our flag will not mean that malaria will suddenly disappear, or that domestic violence will suddenly end, or that we all will have enough food, education, electricity, roads, or jobs.We dreamed of independence, but now we dream of development and of being a developed nation. (italics mine)
sucos reaching 38,293 East Timorese men, women and children. Active participation also came from community leaders like the Chefes de Suco (Village leader) and Chefes de Aldeia (Hamlet Leader), teachers and health personnel, civil society groups, including NGOs and religious organisations, government officials, academics and members of political parties. Donor and INGO representatives, international experts and UNTAET staff provided advice, encouragement and support.
In the early period of UNTAET’s administration the legal infrastructure was appalling. (1) No legal framework was in place. (2) The courts/buildings, including everything in them left from the previous administration (Indonesia) were completely destroyed. (3) With the exception of a number of Indonesian law graduates with little experience in court matters, not one East Timorese judge, public prosecutor or lawyer was in place. Indonesian judges, public prosecutors and public defenders who worked in East Timor as civil servants had left the country following the September 1999 mayhem. (4) Having experienced a military occupation for 24 years during which the judiciary system was simply untrustworthy, people’s confidence in state courts was lamentable.
You got the impression there was a basement under the UNTAET building in Dili with a fax machine and an infinite supply of paper. And that every few weeks, truck loads of faxes would be taken out and dumped in the ocean without being read.