East Timor – Reconciling formal and customary systems through evidence-based programming

Context

Traditional legal practices in East Timor, usually imbued with ancestral religious beliefs, are inherent to a system in which kinship concepts regulate most aspects of everyday life. Conflict resolution and punishment of crimes are part of this. These even kept their relevance throughout Portuguese colonial rule and Indonesian occupation, actually adapting and taking advantage of the formal laws imposed by both external rulers. “These mechanisms have developed in an environment where no state-bodies prevailed, and are paradigmatically contradictory to modern systems of rule of law”, as highlighted by Tanja Hohe and Rod Nixon (see reference below).

Within the complexity and diversity of Timorese legal systems, customary law is characterized by collective restorative justice and social sanction as means for enforcement. It is also a layered system in which a dispute is first reported to the family, then subsequently to the leaders of the village, hamlet, “suco” (group of villages), finally to the elders in the community, and maybe also to the police (albeit this does not mean that the case will follow a formal judicial route of resolution). The pertinence and legitimacy of customary justice implies that, even when justice is done through the formal institutions, the community still needs and demands that the issue be settled through traditional mechanisms. Support to the justice sector in independent East Timor, starting with the United Nations Transitional Administration in 1999, carries the assumption that the extension of statutory justice will gradually replace traditional mechanisms and reconcile its core values with modern concepts and norms.

Entry point

Justice sector development has been central to state-building and peacebuilding in East Timor but, as the Asia Foundation points out, the citizens have seen little benefit “despite many years and tens of millions of dollars spent on reforming the formal system by supporting the physical and human resource infrastructure for formal court actors”. Whilst progress has been made in recent years on strengthening formal justice, the resilience of local systems challenges common assumptions in justice development and questions the validity of rule of law interventions.

The Asia Foundation, a nonprofit international development organisation, has been conducting periodic assessments of end-users’ perceptions of the impartiality, effectiveness and accessibility of the justice system in East Timor, going beyond the understanding of where people go to address their justice concerns.

Surveys were conducted in 2004, 2008, and 2013 by the Asia Foundation with local partners, providing an important snapshot of perceptions held toward formal and informal justice mechanisms, the police, and security in general. The comparison between formal and informal systems was a vital component of the survey.

The results of the surveys pointed to the need to support other actors under justice reform programmes, and contradicted prevailing perceptions about whom ordinary people call on to seek justice. Moreover, the lessons extracted allow for evidence-based programming in a crucial area, fostering sustainability and ownership of interventions aiming at reconciling customary systems with statutory justice.

Lessons identified

The most important lesson from the three perception surveys undertaken by Asia Foundation is that institutions and systems that have little or no relevance to a people’s way of life are unlikely to be adopted in the short term. In this, the data provides strong evidence backing policy and academic literature – above all, from anthropologists – describing how the state-building enterprise in East Timor ignored the pre-existing and functioning local legal order.

The 2013 survey confirmed that, despite significant progress toward strengthening the formal justice system, “a greater proportion of people in contemporary Timor-Leste are more confident and comfortable with local justice systems.” Attitudes towards women’s access to justice, meanwhile, remained significantly worse than in 2004. Ultimately, despite outreach initiatives since 2008 (the year of the last major political-security crisis), Asia Foundation research shows that the people of Timor-Leste continue to have limited knowledge about the justice system and their legal rights. The data indicates also that concerns about best practice, human rights standards, and equitable treatment for all members of society in such a strictly patriarchal and hierarchical system are not yet adequately addressed.

The Asia Foundation strongly recommends stakeholders in justice development to effectively engage with traditional actors and aligning them with existing obligations under the Constitution and international norms, to ensure quality of care and a ‘do no harm’ approach.

Selected Resources

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