|Subject: AFR: Feature: Law comes to East
Australian Financial Review May 28, 2002
Law comes to East Timor
Life is cheap and law is scarce in East Timor. How effective justice will be remains to be seen as the new nation's police and legal systems are being put in place.
As in every area of East Timor's administration, the problems are immense and resources, human and material, are extremely limited. But a safe domestic environment and effective criminal and civil justice are so crucial to its social, economic and political progress that a special urgency surrounds the construction of police and judicial systems.
Many international observers believe the new Government is about to install a Portuguese legal system, which they fear might have less rigorous protections for individual rights than either the present UN system, or the various Anglo-American systems.
Australian and US legal experts in East Timor have detected resistance to their offers of assistance and have been given hints that there is a strong preference for Portuguese criminal and civil law.
Whatever judicial system is adopted, the international community will expect it to be independent, expert, objective, public, and free of political interference and corruption in a nation in which virtually all government power is held by the Fretilin, the political wing of the guerilla organisation that led the war of independence.
Most current police and judicial activity in East Timor involves the pursuit and prosecution of crime - the serious crimes of murder, genocide, torture and other so-called crimes against humanity perpetrated by Indonesian-backed militias between January and October 1999, and "ordinary" post-1999 crimes of murder, assault and theft.
There is little civil and commercial litigation or law, for that matter, although sorting out the confused and uncertain land title laws and resolving rival land claims is looming as a challenge with major implications for foreign investment in East Timor's under-developed economy. (See box.)
The daily law-and-order reality is that East Timor is an endemically violent society. Australian Federal Police Commander Bill Quade, chief of operations for the United Nations police force in East Timor, says the homicide rate is high and that killings occur over trivial matters. He cites the killing of one man over the ownership of a coconut tree and others over land and cattle ownership disputes.
Quade worries about the high incidence of domestic violence, especially serious assaults by men on their wives. At least 20 cases a week - a fast-rising number - are being reported to police. "It's part of the culture," says Quade. "The men want to be dominant persons and don't like it when they are challenged. It's been going on for decades."
Quade also notes an increase in opportunistic theft in the six months he has been in East Timor. He speculates that it may increase in coming months as the UN downsizes, the economy contracts and jobs are lost.
The nascent legal system faces these challenges with few courts, few judges, few prosecutors, few defence counsel, few public defenders and, for the moment, an interim transitional set of laws and legal processes that combine UN regulations and Indonesian law to the extent that it is consistent with international human rights standards.
Melbourne lawyer Caitlin Reiger, who heads the international Judicial System Monitoring Programme (JSMP) in Dili, says the country has only two functioning District Courts, at Dili and Baucau. The Court of Appeal has not functioned for months because not enough judges have been appointed.
According to Reiger, there are about 30 judges, 30 prosecutors and only 11 public defenders, all of whom have lacked experience and needed training and mentoring. Some have gone through quickie legal training courses in the Northern Territory.
During the UN transitional administration, East Timorese judges have sat with international judges. They were in fact the first East Timorese judges to sit in judgement on East Timorese people
Their task has been onerous. They lack adequate resources, including research facilities and administrative support. Moreover, as a recent JSMP report noted, the country needs not only a functioning legal system to deal with ordinary crime, but also has to deliver justice for crimes committed during the period of Indonesian occupation.
"Faith in the judicial system has to be established here," says Reiger. "You are dealing with a community that has never had an impartial justice system."
Some faith appears to have been given to the community in the prosecution of former militia murderers. Sentences of 12 years' jail were imposed on 14 convicted killers. Of 10 militia tried for crimes against humanity in Los Palos, several received up to 33 years' jail following multiple convictions.
A Truth and Reconciliation Commission has been established to enquire into human rights violations between 1974 and 1999, to facilitate "community reconciliation with justice" for perpetrators of less serious crimes.
President Xanana Gusmao has made repeated appeals to the East Timorese to accept these people back into their communities once they have served sentences and apologised.
Less faith has been established in the ability of the police and legal systems to handle so-called "ordinary crimes", particularly domestic assaults. Commonly, perpetrators are arrested, spend a night in a cell and are released back to their families the next day. The assaults, often fuelled by alcohol, continue.
In many parts of East Timor, Reiger points out, people have no knowledge or experience of the formal judicial system and rely instead on traditional village forms of dispute resolution.
On the front line of law enforcement, Bill Quade and his colleagues at UNPOL (the UN police) are pushing to raise the East Timor Police Service to what Quade calls "a standard we feel comfortable living with" before the international force pulls out in January 2004.
So far about 1,800 East Timorese police have been recruited and the new government expects the force to reach its approved strength of 2,800 by 2004. Quade says the East Timorese Police are "dedicated, enthusiastic, but need to be supervised closely".
He says a major national crime investigation unit has been set up and that applications have been called for an anti-corruption unit.
The new Australian Strategic Policy Institute, in its first public report, said the East Timor police service needed to be Australia's first priority for security aid and suggested a long-term program of about $6 million year.
ASPI also suggested Australia's interests would be served by helping East Timor develop its criminal code, courts, judiciary and prisons. Australia has so far committed to a four-year, $150 million program of aid to East Timor, but without special provision for the police.
It remains to be seen how well the ASPI proposal would mesh with what its report called "the system of European law that East Timor is seeking to establish".
But if East Timor does not adopt internationally acceptable law and and order and justice systems, it is doomed to the banana republic status of so much of what is left of the lusophone (Portuguese-speaking) world.
Conflicting claims in no-man's land
There are three forms of land title in East Timor, reflecting the country's long history of foreign occupation. Some land, notably rural land, is held under customary communal title. During 450 years of Portuguese rule, 2,709 parcels of land were given to the colonial elites. During Indonesia's 24-year rule, some 44,000 land parcels were handed out.
Among the crimes committed by the Indonesian military and its proxies as they fled and wrecked East Timor in 1999 was the destruction or theft of many land records. Nobody is sure who owns what. Disputes are increasing as different people claim traditional, Portuguese or Indonesian title over the same land.
To further complicate matters, there is much illegal occupation of land and much wrecked and abandoned property.
The East Timorese government has decided that foreigners will not be allowed to own land in the new nation.
It has yet to decide what sort of land rights to give to foreign investors who require security of tenure before making the sort of capital investment that will start effective economic development.
Most observers of the legal system regard stability of land title and land law as the major civil legal issue for the new government to come to terms with.
Decisions about title recognition, land registration and land conflict resolution procedures still have to be made.
But in a country where the Portuguese and Indonesian colonialists in turn acquired land through threats, intimidation or unfair compensation payments, land law and land justice still seem far away.
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