East Timor's Community Reconciliation Process as a model for legal pluralism in criminal justice.

• Author: McAuliffe, Padraig

'The assumption that legal reform requires new rules is especially absurd in cases where the formal legal system does not reach the whole territory of the state. This is indeed the case in many developing countries where the state either does not have the resources or the legitimacy effectively to rule over its whole territory. In most of these cases local communities are governed partly by their own customary practices and partly by the rules of the formal legal system' (Faundez, J. 2000, p. 6)

1. Introduction

   This article examines the relationship between East Timor's transitional criminal justice Serious Crimes Process (SCP, which operated along the lines of a typical formal court structure with mixed national/international staffing) and its Community Reconciliation Process (CRP, which adopted the forms and processes of non-formal traditional law) as they responded to crimes that occurred in the traumatic period surrounding the nascent state's independence referendum and withdrawal of Indonesia in 1999, and then traces the relationship to the present day. East Timor is a small half island with a population of just over a million people. From 1520 to 1974, it was a Portuguese colony, and thereafter subject to a brutal Indonesian occupation where as many as 200,000 people died from conflict and famine (Gunn, G. 1999 and Nevins, J. 2005). In 1999, it was allowed popular consultation for independence from Indonesia, but suffered a period of extraordinary violence before and after the vote which led to the deaths of an estimated 3000 Timorese at the hands of the Indonesian military and proxy Timorese militias (Commission for Reception, Truth and Reconciliation in East Timor, 2005, p. 8). 200,000 fled or were forcibly deported from the area. A period of UN territorial administration occurred from Indonesian withdrawal in 1999 to independence in 2002, though to this day the UN is required to assist in the administration of the territory. In 2007, life expectancy was only 55 years, while child mortality was sixty out of every thousand live births (UNMIT Human Rights and Transitional Justice Section, 2007, p. 10). Half the population lacks clean drinking water. 350,000 people are food insecure, while over 40 per cent of the population lives on 50 US cents per diem. Literacy rates stand at 57 per cent. It is a truism that the poor and disadvantaged, owing to their greater vulnerability, are most likely to be victims of criminal acts, including human rights violations. It is imperative, therefore, that some system of laws exists to protect them. One of the tests of any legal response to the criminality of 1999 would be whether it helped contribute to the long-term restoration of the rule of law in East Timor. As the following examination of Timorese society will show, local traditional legal mechanisms would, of necessity, be required in the long-term in the absence of a formal justice system.

   Transitional justice, described by Teitel as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes. (Teitel 2003, p. 69) by definition is concerned with mediating that liminal period between repressive past and more liberal future by accounting for past crimes and allowing divided communities to move on. The manner in which this occurs is important, however--to focus on the ephemeral phenomenon that is transitional accountability to the exclusion of broader related issues such as the integration of formal and local traditional law systems (as was clearly necessary in East Timor) can mean that opportunities to ground accountability and justice in the long-term are missed. While the SCP and CRP combined did much to neutralise antipathies that lay along the fault-lines of the Indonesian occupation, they missed that opportunity to serve as a model for the sensible and sustainable integration of the formal justice system every emerging state needs but at the time was woefully under-developed with the local law mechanisms that existing underdevelopment has made necessary. This article examines what this loose model may have looked like by studying the relationship between the SCP and the CRP as they prosecuted and processed respectively criminal offenders from the transition to independence in 1999. While a number of studies have examined local justice mechanisms in East Timor and the CRP individually, none have examined how the relationship of the CRP with the SCP could serve as a model for that between the local law and the formal justice system. Successor trials should serve as an example for the prosecution of crimes in the ordinary, post-conflict period. The CRP/SCP relationship was a significant step in this direction. SCP prosecution was formally linked to the CRP and international involvement in the CRP succeeded significantly in inculcating human rights norms and gender-equality into the local justice system. Notwithstanding these successes, the delegation of these crimes ran upwards from the CRP to an overstretched SCP instead of downwards from the SCP to the abundant capacity of local justice, resulting in impunity and a diminished potential to serve as a model for necessary future integration.

   In the past decade, UN peace operation reform has increasingly emphasised the centrality of courts in reconstructing the rule of law. (1) Hybrid courts composed of international and domestic legal actors trying a mix of international crimes and domestic crimes of the prior regime have been employed as one means of achieving the reconstruction of the courts. They typically deploy to states like East Timor, Sierra Leone and Kosovo where the formal justice system of courts and public prosecutors is in disarray, where there are few judges and lawyers or where those that exist are largely discredited by association with the formal regime. It is argued that the mix of international and national actors in a local setting allows for the mentoring of the latter by the former and the use of successor trials to set an exemplary standard for criminal trials. International actors provide legitimacy and expertise while at the same time empowering local judges, prosecutors, defenders and administrators to absorb, apply, interpret, critique, and develop. international norms before gradually taking control (Dickinson, L. 2003, p. 305). In theory at least, the practices and principle of the hybrid court serve as a model for domestic courts in ordinary times as international involvement is eventually phased out.

   Ignored in this schema which emphasises the formal sector is customary local law, notwithstanding the evident shortcomings in the national justice system which made international assistance necessary. (2) Though tentatively embraced in peace operation reform (3) and more assertively in international indigenous rights principles, (4) these mechanisms have been omitted from hybrid court projects that focus exclusively on formal justice sector institutions and laws. Legal pluralism (in the sense of the presence of distinct legal systems in one state) can exist without the recognition of local justice by the formal justice system. However, most pluralist countries recognise, if not integrate, local justice systems formally. It is estimated that local justice systems resolve between 80-90 per cent of disputes in developing countries (Wojkowska, E. 2006, p. 5). Local justice shares many of the principles of restorative justice and ADR that receive increasing acknowledgement in both developed and developing countries.

   In many ways, the neglect of local justice in UN peace operations is not surprising. Formal courts are essential in grounding the separation of powers, encouraging investment and trying grave crimes. (5) As Wojkowska observes, UN rule of law programmes have usually been top-down and focus more on institutions than on accessibility, regardless of whether or not this is where people actually go to seek justice (Wojkowska, E. 2006, p. 5). In addition, peace operation reform consistently reinforces the primacy of human rights and democracy, while local law is often perceived (frequently correctly) as breaching human rights standards through inhumane punishment, reinforcement of gender inequality, lack of due process, inconsistency and appointments made on the basis of heredity over qualifications or competence. Even advocates of these mechanisms admit that they are frequently paradigmatically contradictory to modern systems of rule of law. (Hohe, T. and Nixon, R. 2003, p. 2).

   As noted above, on the other hand, hybrid courts are usually deployed to territories like East Timor, Kosovo or Sierra Leone where the judiciary is either too few, too unqualified, in exile or lacking in public legitimacy to adequately administer justice competently or in a visibly fair manner. Amidst such devastation, local justice systems will inevitably fill the dispute resolution vacuum for the foreseeable future and will end up handling most criminal cases while the weakened or non-existent judiciary rebuilds. It is this dichotomy--of building formal justice systems at a time when local systems enjoy the greatest public support and use--that informs this article. In these situations, two options are possible. The first is abolition of the customary justice sector in the light of its inadequacies. The second is the integration of local law into the State justice sector, keeping its sphere of action intact and retaining the undermanned formal system for grave ordinary crimes and constitutional issues, while at the same time encouraging the former to adapt to a baseline of human rights protection. The first has historically proven difficult in the short-term even under coercive imperial rule in many states and runs the risk of exacerbating the law and order vacuum. The second runs the risk of adopting practices that run contrary to the...