I’d
like to add some thoughts to this interesting article from SEA-Globe.
Navigating
the dual justice systems in Timor-Leste – the formal justice system and the
traditional justice system, both of which are recognized in the nation’s
constitution – will be an ongoing going process that will need to be supported
by awareness-raising and legal education both in the community and with legal
professionals, and others who work in the justice sector.
USAID’s
Ba Distrito project, through its Access to Justice components, is currently
working to raise awareness among key decision makers in the community, as well
as members of the community themselves about their rights under Timor-Leste’s
Constitution, differences between civil and penal codes, criminal and civil
procedures in Timor-Leste, and what the most appropriate justice pathways are
for different cases.
Ba
Distrito’s Baseline
Survey, which was published in February of this year, found that the
community has greater confidence in the effectiveness of suco-forum dispute
resolution for a number of reasons, including suco-level justice provides
faster outcomes, is easiest to access, shows more respect for traditional
values, and provides the best outcomes for the community.
In
the past month, Ba Distrito has implemented the following activities:
·
In
partnership with JSMP, Ba Distrito has commenced training on Women’s Rights and
Access to Justice, which is being delivered to 100 suco councils in Baucau,
Covalima, Ermera, Liquica and Oecusse. The training has been well attended so
far in Liquica and Ermera with strong representation by Xefe de Suku,
Lia-Na’in, and women’s representatives. This training provides information
about the difference between civil and criminal cases, paying special attention
to domestic violence and women’s rights to property and inheritance. For those
who are interested, some great photos of the training held in Liquica and
Ermera can be found on Ba
Distrito’s Facebook page.
·
Ba
Distrito’s Access to Justice team has conducted a ‘train the trainer’ session
with its legal aid partners – Fundasaun Fatuk Sinai Oeceusse (FFSO) in Oecusse,
LIBERTA in Ermera and Liquica, and Comissão Justiça e Paz (JPC) in Baucau – to
develop simple but effective ways to deliver legal information about the
difference between criminal and civil cases as part of their community legal
outreach. These sessions are designed to inform members of the community about
the difference in the laws, and reinforce the fact that criminal cases of
public nature such as domestic violence cases should proceed through the formal
justice system. For those who are interested, some great photos of the ToT can
be found on Ba
Distrito’s Facebook page.
·
Just
this week, Ba Distrito’s legal aid partners launched a series of audio dramas
that will be used at community outreach sessions and will be aired on community
radio. The topics covered in these dramas include the civil and penal codes of
law in Timor-Leste, domestic violence law, roles and functions of judicial
actors, women’s right to property, maintenance and alimony, and alternative
dispute resolution.
In
addition to the community awareness-raising and legal education, Ba Distrito
also partners with NGO Belun to map the practice of alternative/traditional
dispute resolution within the community in four municipalities as well as
Oecusse special region. This will give us a snapshot of who are the providers
of alternative/traditional dispute resolution in the community, who uses the
resolution, and the types of cases that were solved through non-formal dispute
resolution. Through evidence-based data gathering, this initiative, when completed,
will serve as a reference to the GoTL in its efforts to develop a legislative
framework that links both the formal and non-formal justice system, including
its plan to regulate the traditional justice system.
Tara bandu: homegrown
justice
A centuries-old form of community law and
order known as tara bandu could hold the key to overcoming
many of the difficulties in modern-day Timor-Leste
In
Timor-Leste, marriage and funeral ceremonies can cost families a lot
of money. Sometimes, their entire yearly earnings,” said Laurensius Lein, a conflict
prevention and policy specialist for Belun, a Timorese NGO.
Into thin air: Maubisse, high in Timor-Leste’s
central valleys, is a typical town in theisland nation. Photo: Bernado Salce
But it is not just the
immediate family that has to pay, he explained. It is custom for the extended family, and the local community, to
contribute money, goods or even cattle, which are killed and eaten during the
ceremonies. “We have had cases where each extended family is expected to offer
ten cattle, and each cow can cost up to $500,” adds Lein, shaking his head.
To
put this into context, another national NGO, La’o Hamutuk, estimates that the average
monthly income per person in rural areas, where the majority of the Timorese
people live, is less than $50.
“If
someone cannot afford what is asked of them, there could be fighting during the
ceremony. Or they could have a spell put on them that will bring them bad luck
or death in the future,” Lein continued. “We make our lives poor because of
these ceremonies. A family will spend all their money and even have to take
loans, and then they say there is no money to send their children to school,
afford decent healthcare and start to make savings.”
This
would be a problem in any country. But in Timor-Leste, where La’o Hamutuk
estimates that more than
half the population lives in poverty and that 41% of
working-age citizens are unemployed, this is a major issue.
That
is why, on a cold morning in April, about 20 men and women gathered outside a
community centre in the small town of Maubisse, high in the tropical forests
and a 70-kilometre drive south of the capital, Dili. For more than an hour they
huddled by a pickup in thick overcoats, dragging intensely on cheap, Indonesian
cigarettes.
“They
are the xefes du suku [village leaders] and administrators for the sub-district,” explained Lein,
who had come on behalf of Belun to assist with the meeting.
As the
crowd took their seats, Adelino Espirito Santo, the cultural
coordinator for the Maubisse sub-district, explained that the attendees would discuss imposing a limit on
the amount of money that can be spent on marriage and funeral ceremonies – as
well as the ceremony practised after the building of a traditional house – by
using a centuries-old custom called tara bandu.
Listen up: tara bandu requires the
participation of village leaders and others before rules are set. Photo:
Bernado Salce
A joint
report by Belun and the Asia Foundation in 2013, after an eight-month study,
defined tara bandu as a “traditional Timorese custom that enforces peace
and reconciliation through the power of public agreement to define social norms
and practices to a given community”.
Tara
bandu serves as an integral part of what is called lisan, a Timorese concept that defines social norms,
morality, rituals and systems of community governance. Although opinions
differ, tara bandu can be simplified as a system of local rules set by
different communities. For example, it could limit how many trees are cut down
in an area, settle cases of theft or even deal with domestic violence.
However,
tara bandu is not a nationwide set of rules. Instead, each district,
sub-district or even suku(collection of
villages) might have its own distinct tara bandu. In Metinaro, a city in Dili
district, stealing an animal requires the repayment of the same animal as
punishment. While in Maubisse, one village leader told Southeast Asia Globe: “If someone steals a cow in my
community, we say the thief has to repay one cow and sacrifice another for the
community.”
Although
tara bandu has existed for centuries, pre-dating Portuguese colonisation
in the 16th Century, the Belun-Asia Foundation report claims that it has
enjoyed a “resurgence” since Timor-Leste gained independence in 2002. Today,
organisations including Belun, the Asia Foundation and USAID, as well as the
government, support using tara bandu as a means of conflict prevention, poverty
reduction and social cohesion.
“As
practiced today, tara bandu often falls into three categories: regulations on
human interactions with the environment, interactions with each other and
interactions with animals,” said Todd Wassel, deputy country representative in
Timor-Leste for the Asia Foundation and an author of the report. “It is
generally perceived to prevent violent conflict and, as our report shows, when
there is a tara bandu, people are calmer and more at ease.”
During
the 2012 parliamentary election, Belun supported the Tutuala sub-district, located on the
easternmost tip of the island, in the formation of a tara bandu to prohibit “aggressive
political language” – something that, in the past, had stoked conflict in a
country that was marked by political and regional divisions.
The
government has occasionally supported tara bandu as well. In
2012, the Ministry of Agriculture and Fisheries worked with village leaders
in Daudere, in the east of the country, to introduce a tara bandu to restrict the cutting down of trees in
a certain area in order to enable reforestation. In fact,
according to the report, the former minister of justice, Dionisio
Babo, expressed his support for tara bandu by stating that “customary practices
can strengthen formal laws”.
All ears: Maria de Silva lectures
participants at a community meeting. She says that, in her experience, women
are involved in tara bandu decision-making. Photo: Bernado Salce
“For human relations to
the environment, tara bandu very much helps to reinforce a lot of the laws of
the state, such as preventing degradation and allowing reforestation,” said
Wassel. However, he added that this is not always so clear in other areas of the law and that, often, tara bandu and the formal justice
system can be quite separate.
Later
in the day, outside the Maubisse community centre, a village leader put it this
way: “Many local people do not trust [formal] law and courts. We are used to
settling matters locally, as we have done for centuries.”
Research
by Belun has revealed similar views of the formal justice system in other rural
areas of Timor-Leste. In one case, a local community claimed that $7,500 had
been “wasted on a case” going to court, whereas it could have been settled for
$200 through tara bandu.
However,
concerns have been raised that, instead of supporting the rule of law, tara
bandu could actually be undermining it. One particular area of concern is
domestic violence. A 2010 demographic and health survey, carried out by the
government, found that 36% of married women reported being victims of incidents
of physical, sexual or emotional violence by their husbands.
“While
a number of advantages of an informal justice system can be identified,
[studies] point out that [these] mechanisms display serious shortcoming for
female victims of domestic violence seeking access to justice,” stated a 2011
report by the UN Development Programme (UNDP) titledCustomary
Law and Domestic
Violence in Timor-Leste.
The
UNDP report states that during local mediation there have been occasions when
the emphasis has been put on “the woman’s behaviour that might have caused the
violence, such as not cooking a meal, or failure to prioritise her
responsibilities as a wife or mother”.
Timor-Leste’s
penal code of 2009 designates domestic violence as a “public crime” that must
be investigated and prosecuted by the state regardless of whether the victim
has filed a complaint. But this is not always the case. In 2010, a judge in the
southern city of Same closed a domestic violence case after the victim and
perpetrator presented a peace agreement produced using tara bandu.
Furthermore,
as is so often the case, there are no statistics for the number of domestic
violence cases that fail to make it into the formal justice system and are
instead dealt with locally. But as the UNDP report claims, if domestic violence
is dealt with locally, then the female victims may not be able to access
justice due to the “minimal and often superficial” participation of women in the decision-making positions of communities. However,
Maria de Silva, a 24-year-old youth group worker in Maubisse, disagrees that women are not always part of
the decision-making process of tara bandu. During the Maubisse meeting, the
older men listened when she voiced her opinion, and after a brainstorming
session she eagerly grabbed the felt-tip pen and lectured the others for 20
minutes about her group’s thoughts.
“Tara
bandu is, of course, important for women,” she says, alternating between
rudimentary English and Tetun, the Timorese language. Yet, she adds, she has
never been made to feel excluded in her community and during discussions with
the sub-district.
Wassel
admits that tara bandu is not perfect, and improvements must and are being
made, which is why numerous national and international NGOs are keen to offer
their support to local communities. “In the future, the work will be around how to protect the human rights and
civil liberties of the people living in tara bandu-regulated areas … and
ensuring that the voices of women, the disabled and other marginalised peoples
are heard,” he said. “But tara bandu is an integral part of the Timorese
culture that will last for quite a long time”.
Lein
echoes such an opinion. Speaking a few days after the Maubisse meeting, he was
optimistic that the village leaders and sub-district administrators had agreed
to introduce a limit the expenses for wedding, funeral and traditional house ceremonies of between $150
and $200. “Five people will write it down, check it against
the Timor-Leste constitution and laws and then produce a presentation for the
sub-district,” he said.
In an
increasingly globalised world, despite certain drawbacks,
customs such as tara bandu can offer a rare moment of community democracy. As
one village chief said: “Tara bandu is our history. I hope it will be our
future too.”
“Out of the black” – Revenues from oil and gas supplies have been essential
for an independent Timor-Leste, but with concerns they may run out
within two decades, the pressure is on to prepare for a time
without ‘black gold’
