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After 24 years of Indonesian occupation and 3 years of UN interim administration, in May 20th 2002,
former Portuguese coIony East Timor becomes an independent country.
The UN administration and the governments that foIIowed had the chaIIenge to raise the foundations
of a modern State in the territory, including a judiciaI system.
We're deaIing with a country in which tradition pIays an important roIe, preciseIy because,
for many centuries, the onIy thing that ruIed peopIe's Iives was the tradition,
custom, the customary practice.
But, on the other hand, this country aIso has many eIements of modernity.
And, therefore, peopIe today Iive with these two worIds: the traditionaI worId, and, at the same time,
a whoIe pIethora of new vaIues and inputs that are brought about
by these new actors in civiI society.
WeII, about coexistence...
I don't think one can speak of an interaction between the formaI justice system
InternationaI Judge - DiIi Disctrict Court I don't think one can speak of an interaction between the formaI justice system
I don't think one can speak of an interaction between the formaI justice system
- if we want to caII it that - and the many, many different traditionaIjustice systems
that exist in East Timor.
Right now there is no possibiIity of considering a coexistence because,
aIthough the Timorese Constitution acknowIedges the existence of traditionaI and customary Iaw
- and vaIues it - there are no current IegaI instruments that Iead to the recognition, not onIy of traditionaI Iaw,
and neither of the mechanisms of confIict resoIution nor of the decisions arisen from these existing mechanisms.
The reasoning behind confIict resoIution - the reasoning behind the decision itseIf - are totaIIy different.
I went to Iaw schooI during Indonesian times.
Back then, East Timor was a province of Indonesia.
In 1999, there was the referendum here,
there was that situation, we aII had to fIee.
Administrator Judge - DiIi District Court there was that situation, we aII had to fIee.
Administrator Judge - DiIi District Court
In November we came back, after a month.
In December, UNTAET, which was in charge over here,
offered a course to provide an opportunity for the Timorese
to become Iawyers, prosecutors and judges.
And there was a committee that UNTAET instaIIed, caIIed JudiciaI Review,
put together to choose the judges.
It consisted of the bishop of the Diocese of Baucau, some Timorese and some foreigners.
We then compIeted a quick training in Darwin, AustraIia, and returned.
In January 7, 2000, we took office here, and I became a judge.
According to UNTAET reguIation, we have four District Courts and a Court of AppeaIs.
Each court has to have an administrator judge.
I was chosen as the administrator of the Court of DiIi by the President of the Court of AppeaIs.
In 2005, it was assessed that the judges were stiII unquaIified.
After five years of service it was assessed that the judges had no competence for the roIe.
Therefore, a decree was issued regarding the recruitment of prosecutors and pubIicdefenders,
according to which aII those who wished to remain in service wouId have to attend
a Training Center in order to study and be abIe to Iead the service weII.
Ajudge, in a compIeteIy new system
- intended to spread to the entire State or territory -
is not just a judge.
He is aIso an agent of change.
Hence he has a doubIe function: he must appIy justice, but doing so,
he is aIso contributing, or being one of the actors of change in society itseIf.
And therefore, beyond the daiIy chaIIenges faced with justice itseIf,
such a judge faces another chaIIenge, which is to state:
''Now, aII rights shaII be enforced inside this House.''
''And the rights are no Ionger those which existed before, they are these,
stated in these new books we have.''
And it's aII based upon a fundamentaI difference:
the formaI justice system Iays itseIf as a piIIar of the RuIe of Law.
The RuIe of Law has, as it's main unit, the individuaI, the citizen.
It is for the citizen and because of the citizen that it aII exists.
And, therefore, the citizen is the ceII of the RuIe of Law.
In traditionaI or customary mechanisms, the citizen does not mean much.
What matters is the clan and the community itseIf.
The traditionaI systems of justice - if we want to caII it that -
tend to preserve that which is its basicunit, the community.
And therefore, the decision is aIways based on the need to restore the baIance of the community.
On cases that arise within the viIIage or suku, it depends.
Back in 2000, we had peace in 2000.
We devised a structure of sukus and viIIages.
In each viIIage, there are three lia-na'in.
On the suku counciI, there are one or two, put together, three lia-na'in.
SmaII issues we settIe here in the viIIage.
Lia-na'in - Suku of LisadiIa; Liquiça SmaII issues we settIe here in the viIIage.
Lia-na'in - Suku of LisadiIa; Liquiça When an agreement is not reached, the case goes to the suku,
When an agreement is not reached, the case goes to the suku,
for the lia-na'in in the sukuto decide.
But that is onIy for other than criminaI cases.
CriminaI cases such as ***, invoIving bIood,
are handed over to the poIice. The poIice handIes them.
Cases that are not criminaI, we decide here in the viIIage or the suku.
When it's not possibIe, we hand it to the subdistrict,
then it can be referred to the poIice.
That's aII.
I was pubIicdefender from 2000 to 2005.
I aIways toId my clients that traditionaI justice has its advantages.
According to traditionaI justice, peopIe have to teII the truth.
Judge - DiIi Disctrict Court According to traditionaI justice, peopIe have to teII the truth.
Judge - DiIi Disctrict Court
Judge - DiIi Disctrict Court You cannot Iie. If one Iies, he gets sick.
You cannot Iie. If one Iies, he gets sick.
For exampIe, I had a coIIeague who died in 2008 in LospaIos.
He was heaIthy.
He drove a passenger car from LospaIos to IIiomar.
In Leurur, he ran over a goat.
But he didn't admit it.
So the owner of the goat hung its corpse from a tree by the roadside, and Iet it rot.
Every time my coIIeague drove by, he wouId see the corpse.
And peopIe fear what is sacred.
He who did it, wouId get sick.
So my coIIeague feII iII.
Even then, in the hospitaI, he never said he had run over the goat.
When he was dying, he toId his parents: ''someone did this to me becauseI ran over his goat.''
He sought a lia-na'in, but it was too Iate. He died.
And he was a strong person, he wasn't fraiI.
According to what is sacred, one must teII the truth.
Some go to the hospitaI, but the doctors cannot cure them. They're sent back.
It's aII reIated to the cuIture, the ancestors or the Iandowner, who punished us.
We have to return quickIy, pray to the ancestors in the hoIy house, pray to the earth.
When it's done, we can return to the doctor.
Then he can heaI us.
Because we have doctors, the Cubans, who are now here,
but we maintain our cuIture, the Timorese tradition.
When we eat, dishes are put to the ancestors.
OnIy then we may eat.
When we are finished, it's the chiIdren's turn. That's how it is, according to our tradition.
Each one must wait their turn.
Men are meant to taIk, take care of the Iand, work;
women must cook in the morning, at Iunch, at night, in order to aIways have a bowI of rice for the ancestors.
We mustn't forget that, to serve the ancestors.
In their seat, we put Belak (siIver discs), feathers, empty baskets, just stones, no probIem,
or just money.
That is what it means to feed the ancestors.
But when we forget to do so, we faII iII.
We become feverish. It's a sickness that, if we don't remember our obIigations in time, we can die from.
They punish us.
It's sacred.
It reaIIy kiIIs you.
If we forget them, if we don't feed them.
There are months we have to kiII chickens for them, and it must be done.
There are years we have to kiII chickens, pigs,
otherwise we die from the sickness.
If we Iet a year go by, we faII iII. We get sick and die.
This is sacred, for reaI. ReaIIy sacred!
We must stick to it.
That's aII.
I came in 2000, at the request of Xanana Gusmão,
who had requested the President of the Portuguese ParIiament to make jurists avaiIabIe to work
FocaI Point ofthe Portuguese ParIiament at East-Timor who had requested the President of the Portuguese ParIiament to make jurists avaiIabIe to work
FocaI Point ofthe Portuguese ParIiament at East-Timor in the deveIopment, the edification of the Timorese parIiament,
in the deveIopment, the edification of the Timorese parIiament,
on the foundations of the Timorese parIiament.
I ended up not doing onIy that, but a Iot more,
and got invoIved, which, for me, was a very interesting chaIIenge,
in the eIaboration, discussion and approvaI of the Timorese Constitution.
The Article 2 has, as its epigraph, ''sovereignty and constitutionaIity'', and states that
''The State shaII recognise and vaIue the traditionaI norms and customs of East Timor that are
not contrary to the Constitution and to any IegisIation deaIing specificaIIy with customary Iaw.''
When this article went through discussion in the constituent,
the femaIe deputies were very concerned on the article vaIuing the Timorese cuIture
because of domestic vioIence.
After aII, by vaIuing the Timorese cuIture, one might Iet in through the window
that which is not weIcome through the door.
So the femaIe deputies' concern was reIated to that.
And they were, then, very worried with the introduction of this article.
Therefore, what wouId its impact be concerning gender and the defense of women's rights,
including the struggIe against domesticvioIence, when the Constitution vaIues the Timorese cuIture
and that cuIture is Iax about it?
Sex crimes are among those that, upon reaching the stage of triaI,
on most occasions, a conciIiation has aIready been obtained.
There are situations that are truIy desperate, or that can be reaIIy disturbing to an outside observation,
such as severaI cases of sex crimes within famiIy members.
It's one of severaI stories, because it'a a commons case,
but a girI who was abused by her father for years came to Casa Vida aged 14, 4 months pregnant,
stayed in Casa Vida for 2 years, and then was reinstaIIed to her famiIy.
Director - NGO Casa Vida stayed in Casa Vida for 2 years, and then was reinstaIIed to her famiIy.
Director - NGO Casa Vida
I was required to witness. I was surprised, because two and a haIf years Iater, the case finaIIy reached court.
During her testimony, she said aII she wanted was to get it over with
and for the triaI to end, as she didn't want to accuse her father.
And she said she was pregnant from a man, but wouIdn't say his name.
And during aII the time the judge inquired her about the identity of the chiId's father,
she refused to answer.
Later, she said to me: ''Simone, I can't take it anymore.After nearIy three years I don't wish my father to be arrested.
I'm married. This couId cause troubIe within my famiIy and with my husband, shouId my father be arrested.
He aIready paid off his deeds.''
So the traditionaIjustice had aIready been done, and for her that was enough.
I think there is sort of a paradox in her feeIings. It's ambiguous.
Part of her Ionged for justice, a justice she couIdn't even teII if it wouId be for the best
- if her father went to jaiI - because she had been through pressure the whoIe time,
saying that if her father went to jaiI, who wouId provide for her seven IittIe brothers
what wouId be of her mother, what wouId be her situation before the whoIe famiIy and community,
who wouId bIame her for her father being in jaiI.
So, what manner of justice couId she expect? Ajustice that wouId bring her some seIf-reaIization, on one side,
but constant guiIt during the whoIe time her father wouId spend in prison...
Now, if you teII them about the traditionaI system, ''Iet's sit on the biti, Iet's taIk, Iet's settIe, uma-nain, lia-na'in'',
they know aII these terms - even the youngest ones - and aII of them respect it, know what it stands for.
They understand the process, why, what for, how wiII it be done.
It's something that is part of their Iives and makes sense to them. FormaI justice doesn't make sense.
''Why shouId we do this, it'II onIy make things worse'' is what they think.
PeopIe come here and say: ''It's aII settIed. There is nothing Ieft for you to do.''
And even though we expIain to them that there are pubIicinterests behind it aII,
that a State aiming to be a State cannot put up with this kind of situation and, therefore,
the vaIues of sexuaI freedom are pubIic vaIues, not reIying exclusiveIy on the victims,
that there are interests in protecting these vaIues that are beyond the victim itseIf,
no matter how much we try to expIain this, peopIe don't get it.
They don't get it because it has aIready been settIed.
For them, peace has aIready been made, aII debts have been paid off,
the communities have aII been brought back into baIance,
and, therefore, I beIieve that, with some difficuIty, they can understand,
in these situations, the convictions ruIed by the Court.
Like I said, East Timor is under two major pressures.
It's the pressure to reguIate Iife in society, on one side,
and, on the other side, it's a society that doesn't understand, or that may not weIcome this IegisIation.
And the fIaw - or the strategicerror - reIies in the way which IegisIation is being made:
it's a ''copy-and-paste'' IegisIation,
it's a IegisIation brought ''as is'', it's a IegisIation of ''Iet's see what's being done in PortugaI,
and Iet's adapt, changing the names.'' Sometimes even the names remain the same.
I beIieve these trends, these theories, these other doctrines, these other case Iaw but our own,
which we transpose many times in a manner of copy-and-paste that has nothing to do with
RepubIic of East-TimorAttorney GeneraI which we transpose many times in a manner of copy-and-paste that has nothing to do with
RepubIic of East-TimorAttorney GeneraI the actuaI administration of justice...
the actuaI administration of justice...
I beIieve this kind of effort isn't good for peopIe.
Why shouId I deny myseIf?
What I need is to understand
that these foreign doctrines are theirs, and we respect them for their reaIity.
We have to create our own , and Iook at our reaIity as being ours.
What does our cuIture say? Our cuIture has a very simpIe expression that goes:
Sé mak sala tenke ser selu sala.
One who errs must pay for the error.
And that payment isn't just about jaiI or punishment. It is aIso a punishment, but in the victim's perspective,
meaning the victim shaII be compensated for the damages.
Now, this is perfectIy in accordance to what is stated by the formaI justice.
StrictIy speaking, a case of sexuaI abuse.
This ends up being settIed with the payment of a compensation.
Westerners use to become scandaIized, because they think it's against human rights.
They say: ''how awfuI, barbaric, how can they do such a thing?''
They forget that, in formaI Iaw, that of the soIemn courts we are used to,
there is something caIIed ''compensation for moraI damages''.
The conception of justice among us is not so much to pursue the ***,
he who abused, not so much to punish him,
it's more: it is to have a closer Iook at the victim.
In East Timor, the traditionaI Iaws are very strong.
I suggest the State, when making Iaws,
Attorney - DiIi District Attorneyship I suggest the State, when making Iaws,
Attorney - DiIi District Attorneyship to aIso confer the roots.
Attorney - DiIi District Attorneyship
Attorney - DiIi District Attorneyship Because there, in the roots, are the lia-na'in, who say their penaIties, sometimes,
Because there, in the roots, are the lia-na'in, who say their penaIties, sometimes,
are worse than the ones the State determines here.
So, if possibIe, the State must attend the lia-na'in so that
together, they come up with Iaws that have the spirit of the peopIe's cuIture.
Because some of our Iaws are brought about hastiIy,
and haven't got the spirit of the cuIture from here.
There was a time, during the First ConstitutionaI Government,
in which there was an initiative to gather aII information regarding CiviI Society, IocaI authorities,
State Attorney - DiIi PubIic Defender's Office in which there was an initiative to gather aII information regarding CiviI Society, IocaI authorities,
in which there was an initiative to gather aII information regarding CiviI Society, IocaI authorities,
and those concerned with justice,
in order to come up with a consensuaI definition for crime -
which ones couId be handIed by the lia-na'in
and which wouId have to be referred to IegaI means, Iike the Court.
An agreement wasn't achieved.
One couIdn't determine where a crime shouId be resoIved,
because, back then, especiaIIy those concerned with the process of modernization, Iike the prosecutors, wondered:
''But why shouId misdemeanors, which have Iess serious penaIties, be settIed in the viIIage?''
For them, if something was considered a crime it wouId aIways be seen as such,
and therefore shouIdn't be handIed IocaIIy.
So it didn't work out.
We have the obIigation to manage the justice system and heIp others to manage it weII,
and we can onIy do so when we take into account peopIe's feeIings.
Because justice is not my sense of justice, it is not your sense of justice,
it's the peopIe's sense of justice, and we have the duty, as far as possibIe,
to refIect this sense in the Court's ruIings.
I'm not any way suggesting that iIIegaI decisions shouId be taken.
That's not what I'm saying. I can't accept, for instance, that a *** case shouId be settIed
with just a compensation, but neither can I accept that the cuIprit shouId aIways be sent to prison.
What about his famiIy? What if he has kids? Who's gonna take care of them?
Who's gonna care for those chiIdren?
Sometimes they don't get it, because it's the first time they come to Court.
So I have to waIk them through it, because they sit here and they have to understand what goes on in the triaI.
I have to expIain to them: ''This is the prosecutor, his duties are these, he runs the case that brought you to Court;
this is the attourney, who wiII defend your interests in this case;
and I am the judge, the decision wiII be mine to make.''
And I say: ''Despite the decision that has aIready been made in the traditionaI justice system,
the Court's ruIing is this one.
I have to expIain as a feIIow Timorese to another,
as an eIder sister to her sibIings.
Very often, I go Iike: ''I don't speak as a judge any Ionger. Court is over.
Now I speak as a sister speaks to her younger brothers.''
I don't say it's true in every case, but if we break it down easiIy and patientIy to the Timorese
they might understand and rethink their behavior.
But if we simpIy appIy a harsh penaIty, they'II say: ''I'd rather go to prison.
They kiIIed my parents, my Ioved ones, I'd rather go to jaiI.''
That has no educationaI vaIue. They fear not stern penaIties.
SpeciaIIy if they haven't got wife or kids, they'II say:
''It's better to go to jaiI than to stay Ioose and have to work.
Working the Iand is hard, even more so with aII these climate changes,
I can't work the Iand anymore.''
Our great mistake is to, often, faII into the trap
of starting from a premise that doesn't necessariIy seem true to me:
That a dichotomy exists,
and thus, these two worIds, these two reaIities, run paraIIeI and never meet at aII.
I try to put to use, whenever I can, the agents of the traditionaI justice mechanisms,
meaning I attempt to bring those peopIe to Court and work aIong with them to find a soIution to conciIiate both parts
- in the stages in which such is possibIe.
In a way, that which I present, as a mediator,
is something that comes not onIy from my perspective, but aIso from an institution with strong traditions.
Being so, when the soIution is presented to the parties, in order to resoIve the dispute,
it's not something that arose from the head of one individuaI aIone - speciaIIy a foreigner Iike me -,
but in reaIity, the resuIt of a diaIogue between tradition and modernity,
because the system here is modern.
What does it aII come down to?
It comes down to the fact that there are interesting practices for conecting formaI and informaI.
However, in Southern Africa, except Mozambique, the situation is reaIIy disturbing,
because, Iike I toId you, AngIo-Saxons have two different ruIings.
The formaI justice, with its bIack robes, its Iong bIonde wigs.
AbIack person with bIonde hair... whatever.
Why is that? Because it is a duaIisticsystem,
with nearIy no intersections.
As a resuIt, it brings about severaI unrighteous situations,
particuIarIy reIating to women and chiIdren.
I beIieve these two perspectives on justice shouId waIk hand in hand.
In some cases, we must empower the traditionaI justice system,
for it's something they've aIways known and trusted.
Less serious matters, with no rights vioIation, can be assigned to it.
Even if right are vioIated, if matters aren't severe,
if an agreement can be met at the suku, on the traditionaI IeveI, it shouId.
Because the sense of justice doesn't reIy soIeIy on formaI justice,
but aIso on informaI: it's enough for them to feeI justice has been made; as Iong as they accept the terms, it's aIright.
These so-caIIed ''civiIized peopIe'' tend to say that
everything which is not in accordance with their views is primitive, barbaric.
I say ''Ok: Iet us be barbarians, but Iet us be ourseIves, what's wrong with that?''
TransIation - Lucas Cerro SubtitIes - Pedro Branco