ADDRESS TO BENCH AND BAR

LAS VEGAS U.S.A.

30 JUNE 2004

THE EAST TIMORESE JUDICIARY – AN UPDATE

On 28 January 2003 I delivered an address entitled, “The Judiciary in East Timor – Re-building a Nation”, to the Rotary Club of Mordialloc. I attach as an appendix to this paper a copy of the Rotary paper for ease of reference. Subsequently the Federal Court of Australia published the address on its intranet. My interest in East Timor arose out of a project with which I was involved in October-November 2002. The project was to provide a workshop for the new East Timorese judiciary on the Labour Code, which had recently been promulgated by the United Nations Transitional Administration in East Timor.

The workshop, I fear, had more positive benefits for me than it did for the participants. A major object of the workshop was to prepare the judges of the District Court (all young and inexperienced) to hear appeals from the Labour Relations Board in labour disputes. I was told that the creation of the Board was imminent. Yet, when I visited East Timor last May, in a different role, I was once again told that the creation of the Board was imminent. However, the workshop may not have been a complete waste of time for the local judiciary as it appears that labour disputes are now being heard at first instance in the Dili District Court as a matter of necessity, given that there is nowhere else for the parties to turn.

My visits to East Timor in May and June this year were initiated by the Australian Legal Resources International (“ALRI”). With funding arranged by the Asia Foundation (5/6 though US Aid and 1/6 through Aus Aid), ALRI has embarked on a project of producing recommendations to the East Timorese government concerning Local Systems of Community Justice. This is a fascinating project which has opened up a frontier in my knowledge about East Timor that was totally lacking prior to my visit in May 2004.

I will attempt, in this paper, to update some information contained in the earlier Rotary paper and also make some observations about the traditional justice sector and its links with the formal justice sector.

Introductory Remarks Concerning the Struggle for Independence
A necessarily truncated account of East Timor’s struggle for independence is recorded in the first section of the Rotary paper. For an excellent account of that struggle I recommend the reading of a book entitled, “Deliverance”. The book was written in 2002 by two journalists from “the Australian” newspaper, Don Greenlees and Robert Garran. Also worthy of a read is, “A Dirty Little War”, by John Martinkus, “A Woman of Independence”, written by East Timor’s first lady, Kirsty Sword Gusmao and an excellent book by James Dunn entitled “East Timor – a rough passage to Independence.”

A particularly apposite description of East Timor’s predicament under 24 years of Indonesian rule is set out by Ms Sword Gusmao at p 28 of her book, in the chapter entitled “Unwilling colony”, where she said:

“Indonesia’s invasion and the ensuing occupation of East Timor were thought to have resulted in the annihilation of over 200,000 East Timorese, or one-third of the population. Portugal, which had administered the territory for 400 years, could do little in the face of the full-scale military invasion that Indonesian President General Suharto launched on 7 December 1975. The fragile independence, which had been declared by the left-leaning Fretilin (Revolutionary Front for an Independent East Timor) party on 28 November 1975, was short-lived. The United States, nervous about the prospect of ‘communism’ taking root in Southeast Asia, gave its blessing to Indonesia’s illegal and brutal military action. Australia followed suit, and the rest of the developed world simply looked the other way.

My love for Indonesia was neither diminished nor compromised by my growing awareness of conditions inside East Timor, however. My first few visits to Indonesia in the mid 1980s taught me that the enemy of East Timor – oppression and military abuse of power – was also the scourge of Indonesian society.”

The figure referred to at the third page of the Rotary address, of 100,000 East Timorese deaths directly attributable to the Indonesian invasion and occupation, appears to be a gross underestimation. The figure of 200,000 appears now to be more universally accepted. The figure of 200,000 is the one accepted by Amnesty International, whilst the 100,000 figure appears to relate to deaths up to 1976.

I have since learned that the Santa Cruz massacre, referred to at p 4 of the Rotary paper, was witnessed by seven western journalists, including U.S. citizens Allen Nairn and Amy Goodwin, as well as British photographer Max Stahl, who heroically smuggled footage of the massacre out of East Timor. The photographer observed Indonesian soldiers open fire on hundreds of unarmed pro-independence supporters who had come to the cemetery to mourn the recent killing of one of their members. Two hundred and seventy-one unnamed civilians were killed in this incident.

Also on the fourth page of the Rotary paper, reference is made to the result of the independence referendum or as it was locally known, the “popular consultation”. The actual figures were 344,850 or 78.5% in favour of independence and 94,388 or 21.5% against.

At the bottom of p 5 of the Rotary paper and indeed on p 1 (where reference is made to a militia war) the impression is given of a pro-Indonesian militia running riot after the announcement of the vote in favour of independence. Whilst so much is true, what is not stressed, and should be, is that the militia groups were organized, funded and commanded by the Indonesian military, effectively as a wing of its operations. Some suggestion of this is made in the last incomplete paragraph at p 3 in the Rotary Paper, where the word “often” now seems clearly superfluous.

At the top of p 4 of the Rotary Paper, it is said that many East Timorese were killed in the violence which followed the independence vote. The general consensus appears to be that approximately 140,000 people were killed, and 250,000 were forcibly taken into West Timor. Of those people taken by force, about 28,000 currently remain in refugee camps and about 160,000 others fled their homes in the main seaside towns on the north coast to hide in the mountainous interior of the country. Approximately 70% of homes and buildings were destroyed during the violence. These figures are huge in the context of a people of 800,000, most of whom “survived” on subsistence agriculture.

The following information sketches in some further details about events which occurred after the multi-national peacekeeping force entered East Timor on 20 September 1999:

•	The United Nations Mission in East Timor (“UNAMET”) (which had been established on 11 June 1999 to oversee a transition period after the popular consultation vote, whatever the outcome) re-established its headquarters in Dili on 28 September 1999.
•	On 19 October 1999 the Indonesian People’s Consultative Assembly formally recognized the result of the popular consultation.
•	The United Nations Transitional Administration in East Timor (“UNTAET”), as is recognised at the bottom of p 4 in the Rotary paper, was established on 25 October 1999. The relevant United Nations Resolution was Resolution 1272.

Apart from the matters referred to at p 5 of the Rotary paper, UNTAET was mandated by Resolution 1272 to establish an effective administration, support capacity building for self-government and assist in providing the conditions for sustainable development.

•	In February 2000, UNTAET began a process of re-organisation to more accurately reflect the future government of East Timor and increase the direct participation in government of the local population. Eight central portfolios were created, including justice and police and emergency services.
•	In August 2000 authority was given to the Transitional Administrator, the late Sergio Vieira de Mello, who was the representative of the Secretary-General of the United Nations.

The current context
The state of the justice system in East Timor can only be realistically examined in the context of the major issues facing this new nation, now officially known as Timor Leste (Portuguese for East Timor). For ease of reference I will refer to “East Timor”.

East Timor is located about 450 kilometres north of Australia, about a one hour plane ride from Darwin. It is the poorest nation in Asia. Some three-quarters of its population of about 850,000 are engaged in subsistence agriculture. Per capita gross domestic product is about $US460. Basic income, health and literacy indicators are among the lowest in Asia. Access to electricity and potable water is severely limited, especially in the areas outside the main towns. As at late April 2004 there were only 20 doctors in the country, with 50 medical students studying abroad. International donors currently contribute two-thirds of the nation’s $90M annual budget. There is a crippling infant mortality rate of about 13.2%.

East Timor has land border demarcation and security issues with Indonesia. These are complicated by the cries for justice from the victims of Indonesian violence and Indonesian sponsored violence that took place from 1975 to 1999 (most notably in 1999), and the countervailing desire of the two Governments for reconciliation. The security issues stem from a fear that the militia groups in West Timor will re-group once the United Nations scales down its peacekeeping operations. East Timor has a maritime border issue with Australia concerning the potentially lucrative gas and oil fields in the Timor Sea.

As well as overcoming poverty, general deprivation and poor social services, East Timor is confronted with the problem inherited from the Indonesian occupation of the possibilities for corruption in the civil service. This problem is compounded by a weak, inexperienced and under resourced judicial system. There is also an endemic societal problem of domestic violence directed against women.

East Timor also has language issues. The official languages are Tetum and Portuguese. However, only about 10% of the local population speak Portuguese. Whilst some variation of Tetum (the official version is locally known as Tetum-Dili) is spoken in most parts of East Timor, in many places only the local vernacular is spoken.

In two regions, Tetum is rarely used. These areas are the enclave of Oecussi, surrounded by West Timor and the Wetar Sea, and the Fatalulku speaking area in the Eastern section of the island of Timor which stretches from Lospalos to Tutuala.
In fact, there are more than 30 distinct ethno-linguistic groups deriving from two dominant language families:
-	Malayo-Polynesian (Austronesian);
-	Papuan

According to James Dunn in “East Timor – A Rough Passage to Independence”, Longueville Books 2003:
“The most widely spoken languages…were, before the 1975 invasion Tetum…Mambai, Bunak, Kemak, Tokodede, Galoli, Makassae and Dagoda. Of these, Tetum has become a kind of lingua franca and is spoken or understood in most parts of the island.”

Establishing a judicial system
The above heading appears at p 7 of the Rotary paper. According to the East Timorese civil society organisation, La’o Hamutuk’s October 2001 bulletin, UNTAET appointed 25 judges, 13 prosecutors and 9 public defenders in early 2000. The same bulletin noted that prior to 1999 very few of the East Timorese received legal training at Indonesian law schools and nearly all of those who graduated were not allowed by the Indonesian administration to practice law. Additionally, the new judges did not undergo an extensive training program as usually occurs with the career judiciary in civil law countries.

The Court of Appeal
Towards the bottom of p 8 of the Rotary paper, reference is made to the Court of Appeal as existing in “theory”. I am pleased to say that life was breathed into the Court last year when it commenced to re-operate in July 2003 with the appointment of Judge Claudio de Jesus Ximenes as President and the additional appointment of an international judge.

The Court faced a significant backlog of about 70 cases. The Court has worked hard to reduce the backlog. As at November 2003, 133 appeals had been filed with the Court since it commenced operation in July 2000 (although through a lack of available judges it did not sit between October 2001 and June 2003). Appeals lie to the Court of Appeal from judgments of the District Court on the following grounds (as set out in s 40.1 of UNTAET Regulation 2001/25):
•	A violation of the rules of criminal procedure;
•	A violation of the procedural or substantive rights of the accused;
•	An inconsistency within the grounds of the decision;
•	A material error of law or fact.

Section 22.2 of Reg. 2000/15 provides that the Court must sit in a panel comprising three judges, two of whom must be international judges. The President, Judge Ximenes is an indigenous Timorese who fled to Portugal at a young age and became a judge in that country.

As at November 2003, the Court of Appeal had handed down 71 decisions with 62 appeals pending. The most interesting case decided by the Court of appeal since its re-emergence was Public Prosecutor v dos Santos, published on 15 July 2003.

The dos Santos case concerned the interpretation of s 3.1 of UNTAET Regulation 1999/1 which provides:

“Until replaced by UNTAET regulations or subsequent legislation of democratically established institutions of East Timor, the laws applied in East Timor prior to 25 October 1999 shall apply in East Timor insofar as they do not conflict with the standards referred to in section 2, the fulfilment of the mandate given to UNTAET under United Nations Security Council Resolution 1272 (1999), or the present or any other regulation and directive issued by the Transitional Administrator.”

The standards referred to in section 2 are:
•	The Universal Declaration on Human Rights of 10 December 1948;
•	The International Covenant on Civil and Political Rights of 16 December 1966 and its Protocols;
•	The International Covenant on Economic, Social and Cultural Rights of 16 December 1966;
•	The Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965;
•	The Convention on the Elimination of All Forms of Discrimination Against Women of 17 December 1979;
•	The Conventions Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment of 17 December 1984;
•	The International Convention on the Rights of the Child on 20 November 1989.

A majority of the Court considered that the section was directed to laws which validly applied rather than those which were applied de-facto. As the Indonesian occupation was illegal they considered that Indonesian law could not have validly applied and that the law recognised by the Regulation was the law of Portugal.

As the Judicial System Monitoring Programme (“JSMP”) (an East Timorese NGO) said in its August 2003 report:

“…the decision has generated an enormous amount of uncertainty, confusion and division within the Courts, East Timorese legal fraternity and community at large regarding the fundamental basis, or source of East Timorese laws.”

On 7 August 2002, the National Parliament legislated to overturn the Dos Santos decision, with effect from 20 May 2002. Article 1 of the new law provides:

“It is understood as the law in force in Timor-Leste on 19 May 2002 … as every Indonesian law which was applied and was “de facto” in force in East Timor, before the 25 October 1999 in terms of UNTAET Regulation 1/1999.”

Article 2.3 states:
“In Timor-Leste, the sources of law are:
(a)	The Constitution of the Republic.
(b)	The laws promulgated by the National Parliament and the Government.
(c)	Supplementary, the regulations and other documents from UNTAET, while not revoked, as well as the Indonesian laws in terms of Article 1 of this law.”

Serious crimes
At pp 10-12 of the Rotary paper there is a discussion about the Serious Crimes Unit and the Special Panel for Serious Crimes. The Unit and the Panel has continued to perform outstanding work. Although, with the scaling down of UNMISET, their future operations will be severely curtailed. On 29 April 2004, the United Nations Secretary General, Kofi Annan, recommended to the Security Council that the UNMISET, which was due to expire on 20 May 2004, be extended “in a reduced size and with a modified mandate” for a further year beyond 20 May 2004. An important feature of the new 12 month mandate was to provide assistance to the justice system. The issue of general assistance to the justice system will be discussed later, suffice to say that the implications for the work of the Unit and the Panel for the changed role of UNMISET will be profound.

As at 19 May 2004, since the start of the serious crimes process, 54 people have been tried by special panels with 52 convictions (51 East Timorese and 1 Indonesian) and 2 acquittals. Fifteen trials involving 35 accused are ongoing or pending, and activity at the trial and appellate levels is expected to increase.

There are 10 priority cases where the investigative and indictment phase is complete. Some investigations are continuing, including an investigation into the killing of local UN staff during the popular consultation for which at least one additional indictment is expected. As at May 2004, there were 83 indictments filed with a total number of 373 indictees, the majority of whom (about 280) reside in Indonesia. That figure includes 37 military commanders and four police chiefs. Charges remain pending against 313 accused.

In announcing, what may be viewed as a wrapping up of the serious crimes process, the Secretary-General said:
“this additional year of assistance may not be able to fully respond to the desire for justice of those affected by the violence of 1999. As this process advances, the international community may wish to give further consideration to additional measures that could advance the realization of justice.”

On 14 May 2004, the Security Council unanimously decided to extend the mandate of UNMISET for 6 months, with a view to subsequently extending it for a final period of 6 months until 20 May 2005 (Resolution 1543 of 2004). Accordingly, UNMISET’s size has been reduced and its tasks revised.

The winding down of the serious crimes process is most unfortunate. It has operated efficiently and without undue costs. It commenced in January 2001 with a yearly budget of $US9M and with 50 convictions recorded as at 28 April 2004. By comparison, the International Criminal Tribunal for Rwanda commenced in December 1995 with a yearly budget of $US93M and with 18 persons convicted as at 28 April 2004.

As at 19 May 2004 there were fifteen trials proceeding or due to commence before the Panel, involving a total of 32 defendants. The ten priority indictments include the following infamous cases:
•	The Liquicia church attack
•	The Suai church attack
•	The Belo compound attack
•	The Maliana police station attacks
•	The rampage of TNI Batallion 745.
An impression of what the Unit and the Panel have had to deal with can be gleaned from the following summary of the Los Palos case, prepared by officers of the Unit:

“Los Palos Case
On 25 September 1999, Joni Marques (leader of the pro-Indonesian militia “Team Alfa”) ordered that a roadblock be erected on the road with large rocks, and placed members of his militia group on the western and eastern approaches. Joni Marques and others positioned themselves in the middle of the road. The remaining members of the group, hid themselves near the roadside.

Shortly thereafter, a Toyota vehicle approached the roadblock from the direction of Lautern towards Baucau. In the vehicle were Brother Jacinto Xavier, Brother Fernando dos Santos, Brother Valerio da Conceicao, Sister Eminia Cazzagina, Sister Celeste de Carvalho, Agus Muliawan, Cristovao Barreto and Titi Lopes. Joni Marques shouted that this was the vehicle they had been waiting for, and ordered the vehicle to stop. When it stopped they opened fire at its occupants, killing some and wounding others.

After the shooting stopped, members of Team Alfa approached the vehicle. Those inside the vehicle and those who had managed to get outside, were attacked with machetes. An attempt was made to set the vehicle and the bodies on fire. A male survivor attempted to escape from the vehicle and was shot. They then pushed the vehicle with the bodies into the river.

At the instruction of Joni Marques, members of the group attacked the two remaining survivors, an injured nun and Izino Amaral. The nun had been dragged to the side of the road, and she was praying in a kneeling position. She was attacked with a machete and was eventually shot. Then her body was thrown into the river.

Izino Amaral, a 13 year old boy, who had been tied to a tree, was attacked with machetes, and was killed to eliminate a possible witness. His body was thrown into the river.

Joni Marques shot at the bodies and threw a grenade in the river to ensure there were no survivors.”

Recently, on 10 May 2004, an investigating judge attached to the Panel, Judge Phillip Rapoza, a U.S. jurist of Portuguese descent, (an appellant judge from Massachusetts) issued a warrant for the arrest of General Wiranto. Wiranto led the Indonesian military at the time of the violence it sponsored and carried out in 1999. He is now a leading contender for the Presidency of Indonesia in elections due to be held on 5 July 2004. The East Timorese Government is reluctant to act on the warrant, putting good relations with Indonesia ahead of the desire of victims for justice. The Prosecutor-General recently attempted, unsuccessfully, to have the arrest warrant set aside. The same Prosecutor-General complained last January about Judge Rapoza’s failure to conduct a public hearing into whether Wiranto should be indicted.

The East Timorese Foreign Minister, Dr Jose Ramos-Horta was quoted in the Australian Financial Review’s 31 May 2004 issue as saying that although he believed Wiranto to be ultimately responsible for the tragic events of 1999 he was concerned that:
“only a small minority of people [in East Timor] still clamour for international justice. The overwhelming majority prefer to let the past go by and concentrate on the day to day challenges of a new country.”

Nevertheless there is a strong view in many quarters in East Timorese civil society, and beyond, that the work of the Unit and the Panel is being prematurely curtailed.

JSMP has reported about its consultation with ordinary East Timorese about the Serious Crimes process not being wide enough. In the context of former militia members returning to their home areas from West Timor, a Los Palos village chief was reported to have said:
“…we can’t wait for justice from the SCU and wait, and if nothing happens in one month someone will beat them or may be kill them – they need to be investigated quickly.”

It is feared in some quarters, like JSMP, that the return of militia members from West Timor and the scaling down of UN troops, is a recipe for heightened tension and political unrest which will be exacerbated if justice is delayed and/or denied.

The Indonesian Ad Hoc Human Rights Tribunal
At p 12 of the Rotary paper reference is made to the trials conducted in Indonesia concerning the 1999 violence in East Timor. Subsequent events have confirmed that process to be a farcical sham.

There is a lack of political will in Indonesia to take the process seriously. Prosecutors have offered only flimsy evidence for charges when hard evidence has been available. They have also requested minimum sentences. TNI officials have sat in Court and sought to intimidate international observers. Judges of the ad hoc Court have been pestered with offers of bribes from the military for favourable verdicts. On the other hand some judges have honestly carried out their tasks and made efforts to ensure a fair process. This has meant that some convictions have occurred, but the sentences have been relatively light and the perpetrators remain free on bail pending appeal. In the interim, they parade themselves as national heroes.

In a document written by Professor David Cohen, Director of the University of California, Berkeley War Crimes Studies Centre, edited by the International Centre for Transitional Justice and entitled “Intended to Fail”, the following points are made about the ad-hoc tribunal.
•	The prosecution in almost all of the trials failed to press its case with professional commitment to produce “sufficient inculpatory testimony” and documentary material, despite it being readily available.
•	The prosecution failed to outline “a coherent and credible account of the violence…sufficient to justify convictions in crimes against humanity cases.”
•	There was an underlying endemic failure that crippled the whole process, being “(t)he failure of political will in the attorney general’s office and the highest levels of the Indonesian government to encourage or even permit a serious attempt to establish the identity and guilt of those most responsible for the crimes committed in East Timor.”
•	The trials “have failed to establish accountability and undermine the culture of impunity that was responsible for the trials in the first place.”
•	“The trials have failed fundamentally in fulfilling the “truth function”, a central part of the mandate of human rights and war crimes tribunals. Indeed, by clinging to a version of the violence in East Timor that is accepted nowhere outside of Indonesia (and rejected there by many) the trials have lost a unique opportunity to set the historical record straight, inform the Indonesian public of the accountability of their institutions for the gross human rights violence perpetrated in their name, and provide a basis for reconciliation and justice for the victims in East Timor.”

After the acquittal on 11 March 2004, of five Indonesian officers implicated in the massacre of civilians in a church in Suai, being upheld in the Supreme Court of Indonesia, Human Rights watch called on the United Nations Secretary-General to commission a group of experts to examine all options for justice for crimes committed in East Timor.

The Suai Church massacre involved the killing of 200 civilians, (including three priests) by the Laksaur militia and members of the Indonesian Armed Forces, Police and Mobile Police Brigades.

The ad-hoc tribunal process has been an embarrassing whitewash with 18 men being tried, 12 of whom were acquitted. The six convicted defendants received modest or nominal sentences with none having served a single day in prison.  These sentences are now pending appeal to a mostly corrupt Supreme Court of Indonesia.

The Commission for Truth Reception and Reconciliation
The Rotary paper at pp 14-15 refers to the Commission for Truth Reception and Reconciliation (known by its Portuguese acronym “CAVR”).

CAVR has concluded its operations, which apart from other sources of funding, was assisted by a generous contribution of $1.2M from New Zealand in the 12 months to 10 May 2004.

On 15 to 17 March 2004, CAVR held a public hearing on the issue of “self-determination and the international community.” On 29 and 30 March 2004 it held two days of public hearings on the experiences of children during the 1999 conflict.

CAVR has closed its regional offices and is focussing its resources on the completion of its final report in October 2004. The report is expected to make suggestions for ways in which lasting reconciliation may be promoted.

The District Court in dire need of help
On a trip to East Timor last May, I spoke with two judges of the District Court about the challenges confronting them. Those challenges are daunting. The judges continue to have enormous caseloads. The shortage of judges has been compounded by the sending of eight judges to Portugal for language training for 12 months from July 2003. When they return, another eight judges will be sent to Lisbon to do the same. I was told that in Dili, apart from the Special Panel, there are three District Court judges and two investigating judges. In Baucau there are only two District Court judges, not enough for a panel. There is one investigating judge in Baucau. The Court does not sit in Suai. Cases from there are being heard in Dili, as are criminal cases from Oecussi. Occasionally Dili judges will travel to Oecussi for one week’s civil caseload.

The salaries are very low: $US360 per week, out of which 10% is taken in tax. The Dili judges are provided with a couple of vehicles to share but are not given any money for petrol. They have no telephones and have to buy their own phone cards to keep their mobile phones operational. Recently, the Court of Appeal took over funding arrangements for the District Court. Partly as a result of that transition, the Dili District Court judges found themselves without ink for their printer for several weeks and were unable to produce their judgments. The judges type their own judgments, as they have no staff. They do their own research, without access to the internet and with only a small quantity of books at their disposal. They are handicapped by events such as Parliament not supplying them with copies of new laws until a few weeks after they have been promulgated. They have no separate bathroom facilities, having to share them with litigants, witnesses and lawyers. In Baucau, two of the judges who left for Lisbon in July 2003, told me that prior to their departure they slept in their chambers and bathed in the sea.

From discussions last May with President Ximines from the Court of Appeal, it appears that there are plans to recruit international judges from civil law jurisdictions both to the District Court and the Court of Appeal to ease the backlog and mentor the young, inexperienced, East Timorese judges.

In the discussions in the United Nations Security Council about the extension of UNMISET, the Australian representative referred to a 4.5 year plan with the United Kingdom to provide $50M “to assist the capacity of the police force and the justice sector”. I hope the distribution isn’t slanted too highly towards the former.

In a speech in the Security Council on 10 May 2004 the East Timorese representative, Ms Ana Pessoa Pinto, conceded that, “much [is] needed to be done to establish a society based on respect for the rule of law” and that “an important element” in that goal was “the development of the judiciary”. She also noted that the UN intended to provide “judge mentors”.

Mr Kamalish Sharma, the Secretary-General’s Special Representative for Timor-Leste, told the Security Council that:
“…a healthy and functioning justice sector was crucial for the overall functioning of democratic institutions. The recruitment of international judges to fill the gaps should be accorded priority attention. The sustainability of the justice sector…could only be activated through direct support of bilateral and multilateral parties.”

The Chilean representative said that he fully supported further assistance for the justice system and was concerned about “extensive delays in the administration of justice and shortcomings in human rights.”

The U.S. representative, Mr Stuart Holliday, said that further assistance from the international community could hopefully “establish a strong judicial tradition with emphasis on human rights and the rule of law.”

The Secretary-General noted that there are “grave problems with the system for the administration of justice.” He said that courts outside of Dili remained inoperative for most of the time and that the capacity of the judiciary was “extremely limited.” He observed that further assistance was essential “to allow the system to function even at a basic level.”

Specifically, the Secretary-General referred to the recruitment of “15 advisers in justice related areas”, including 7 acting judges/judge mentors; “who would help to promote the functioning of the court system, including in the districts and to reduce the backlog of pending costs, while supporting training of Timorese counterparts.”

The sooner this happens the better, so that confidence in the legal system can be promoted.

Traditional Justice
On my recent trips to East Timor I have been examining the role of local systems of community justice. I am reluctant to steal the thunder of those who sent me on this interesting mission so I will not place too much in writing on this topic but will expand upon it orally.

The traditional system of justice which applies throughout East Timor, with regional variations, has applied for centuries. It has survived Portuguese colonialisation, Japanese invasion in World War II and Indonesian occupation. It still thrives, in part, because of the weakness and inaccessibility of the formal justice system. It flourished during the Indonesian occupation because the local population had no confidence in the corrupt Indonesian judicial process.

The goal in local systems of community justice is to reach a consensus about the resolution of disputes, including the mediation of appropriate penalties for crimes so that the victim and/or his or her family can be reconciled with the perpetrator and/or his or her family. It has the advantages of being low cost, accessible, speedy and leading to genuine reconciliation, rather than mere punishment.

Its perceived disadvantages are the adverse way it tends to treat women, children and displaced persons who have lost their lands by virtue of occupation or conflict. The challenge facing NGOs who desire to assist the Government in finding out the best way to recognise the existence of traditional systems legislatively is to observe and attempt to understand the processes to a far greater degree than has occurred to date. There is much that the traditional and formal systems of justice can learn from each other and in turn, strengthen respect for the rule of law.

From my discussions with the District Court judges, it appears that there is already some form of inter-linking between traditional and formal justice, with the parties choosing to mediate disputes in the traditional way before progressing them further in the Court. This process has been encouraged by some judges. Perhaps one day, in appropriate cases, the Court may be empowered to formally remit some matters to local systems of community justice, perhaps with a right of review or appeal to the formal justice system. The future possibilities in this area are interesting to say the least.

Justice Shane Marshall*
30 June 2004

* A judge of the Federal Court of Australia