A Review of the 2010 Domestic Violence Law in Timor Leste

Jeswynn Yogaratnam[*]

Abstract

In July 2010 the Timor Leste Government promulgated the Law Against Domestic Violence. This is part of a constitutional promise to improve women and child security. Inherent in this development is the shift from traditional dispute resolution system to a state criminal justice system. This shift identifies domestic violence as a public crime and relies on greater participation from the stakeholders of domestic violence, i.e., the police, prosecution, legal services, health care services, social care services and community leaders.

This paper examines the legal framework of the new domestic violence law and the impact on the stakeholders in delivering the legal obligation to promote women and child security in Timor Leste. Inherent in this discussion is the question of whether the new law can reform the traditional justice system, change community behaviour and meet the competing challenges of cultural relativism in each district of Timor Leste.

I. Introduction

A common observation in the legal systems of most post-colonial states is the existence of a slippery slope on which legal pluralism slides. This may be a result of the legacy of colonial laws; the introduction of transitional laws; the advent of post-transitional laws; and the uncertainty of where traditional customary laws and religious laws operate within the new legal system. In most cases, this creates a state of confusion within to the communities around the competing interest between the new laws and those relative to the culture of the communities. As a post-conflict state, the Timor Leste’s legal system shares this tussle of local community recognition and acceptance of the new laws within the formal legal system[1] when juxtaposed with adat.[2]

The position of customary law in Timor Leste is encapsulated in Article 2(4) of the Timor Leste’s Constitution, [3] as follows:

“The State shall recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing specifically with customary law.”

It appears while the Constitution recognises customary law, uncertainty remains on the applicability or inapplicability of adat[4]where the Constitution and State legislation provides for laws that share a domain with the traditional justice system. As a result, any introduction and implementation of post transitional laws in variance or competition with adat will take time to gain social acceptance. This is more so in cases ofdisempowered members of society, especially women survivors of domestic violence where almost 90 per cent such cases are dealt with applying adat.[5]

With the recent promulgation of the Law Against Domestic Violence (the new law),[6] there is an expectation of equality of women to be achieved[7] through a gamut of legislation and social policy. One such move that is already being advanced through the Office of the Secretary of State for the Promotion of Equality (SEPI)[8] is access to justice to domestic violence survivors as part of the government’s National Priorities Program for 2009.[9]

In improving access to justice, the new law can be viewed as adopting a process of vernacularisation, [10] which is the transfer of the translation of ideas and practices developed in cosmopolitan

centres such as United Nations into termsappropriate for local contexts.[11]This is achieved in two stages. First, the collective responsibility afforded to the stakeholders - police, public prosecution service, legal services, health care services and social care services in networking together to effectively unclog the access to justice.[12] Second, through the government developing a National Action Plan which involves active collaboration with civil society organisations, local government (community leaders) and families of communities.[13]

Vernacuarisation in the context of the new law is important because the new law makes domestic violence a public crimeand potentially reforms the traditional justice system. Hence unless the local context is considered, the existing difficulties faced by women will not be removed and there may be a fall-back to the traditional justice system which anecdotally is said to merely kill the pig[14] and let the women continue to suffer’. The existing difficulties include barriers to the formal justice system as a result of distance and costs; a reliance on traditional justice approaches with their weak human rights records; and limited knowledge of laws and rights known to domestic violence survivors.[15] Hence, in examining the purpose, content and application of new law, there is a need to understand the interplay between the new law and the Penal Code (together with adat).

2.Resolving domestic violence through adat

It is common in most indigenous cultures for the traditional justice system to be based on restorative justice. This is the case with domestic violence dispute resolution applying adat in the districts of Timor Leste. While there is no agreed definition on restorative justice, it is understood to be based on symbolic, material and moral outcomes through: repairing the harm; the chance to receive an apology, reparation, healing and or empowerment; the opportunity to tell one’s story, participation in the process and in decisions about the outcome of the matter; the chance to learn more about the offender and in doing so become less angry and less fearful; and the chance to transcend resentment and become a more virtuous person.[16]

When applied in the context of Timor Leste, the common observations include: the woman survivor does not get a chance to be heard or to respond; shame is dealt with an agreed reparation such as killing the pig; the couple is made to reconcile without considering the trauma to the survivor; the offender may still not recognise his actions as criminal; the woman may be stigmatised in the community; and the offender is likely to repeat the offence for lack of an effective deterrent. Clearly, while restorative justice may have its merits in dealing with other crimes, it may be not achieving justice for purposes of domestic violence survivors.

One of the other challenges in interfacing the new law in the districts is the reliance on adat, which is not only for purposes of reconciling the couple but also to keep the spirits at peace (through sacrificial offerings). This creates some resistance by communities leaders in forwarding the matter through the criminal justice system. To this extent, even if the new law is applied in the villages, it would be slow for any cultural practice to change.

2.1.The new law: The position of adat in domestic violence

The question then that arises is where does adat lie in the wake of the new law?

Interestingly, in Article 2(3) of the draft version of the new law, there was a clause as follows:

“Domestic violence shall also refer to cultural and traditional practices that expose women to special risks of violence and abuse…”

This clause did not survive the promulgated version. This means that either the Government is being sensitive to adat or just prefer to remain ambiguous. Either way,as the draft currently reads, if a domestic violence offence can be established by the prosecution through the Penal Code,[17] the alleged criminal act can be tried via the new law. The drafter’s silence as to the applicability or non-applicability of adat, may preserve some aspects of the restorative justice system for purposes of cultural beliefs of the community. In a way, this is consistent to Article 2(4) of the Timor Leste’s Constitution[18] whereby the State shall only recognise customs that are not contrary to the Constitution and specific legislation dealing with customary law. Since the Government has not expressly legislated against adat in the context of domestic violence [when it had the opportunity via the draft in Article 2(3)], adat will continue to have a place within the new law.

3. The New Law and the Interplay with the Penal Code

The preamble to the new law sets out the objective as three pronged:

  • prevention of domestic violence;
  • protection from domestic violence; and
  • assistance to domestic violence survivors.[19]

This is achieved through empowering the relevant domestic violencestakeholdersto act[20] with meaningful outreach to Chefes de Sucu (chiefs of villages) and Chefes de Adelais (chiefs of hamlets). This is crucial because any effective traditional justice/adat reform ontreating domestic violence as a public crime will emanate from the attitude community leaders in treating it as such.

At the outset, it must be understood that the new law makes domestic violence a crime in cognizance with the Penal Code. This can be expressly drawn from Article 35[21]andArticle 36[22]of the new law which makes specific reference tovarious articles of the Penal Code. In this regard, there is unequivocal parliamentary intention that the new law be read in conjunction with the Penal Code. This means, for instance, in a domestic violence case where the wife is assaulted, the assault could trigger a simple offence against physical integrity under Article 145[23] of the Penal Code or a more serious offence under Article 146[24]of the Penal Code. Importantly, this also means an assault in a domestic violence context should not be treated as a lesser offence to that of non domestic violence case.

It should be noted that the Timor Leste Penal Code itself is a new law, having repealed the Indonesian Penal Code in March, 2009. This means that the application of the Penal Code provisions, while similar to its predecessor have some significant differences (e.g. the acknowledgement of marital rape as a crime) which have not been tested by the Courts. As such, NGOs like the Judicial System Monitoring Programme (JSMP)must also monitor decisions on the application of the Penal Code provisions alongside the new law to truly assess the success of the laws implementation. This is crucial as in the past judges have been suspended for being unskilled due to lack of training.

Some of the concerns that arise from aligning the new law with the new Penal Code include the issue of the survivor’s consent; and the sentencing for such offences by the Courts. Both operate differently in the traditional context of adat whereby consent is not a requirement for the women complainant and sentencing is based on restorative justice as opposed to the punitive Penal Code approach.

3.1 The concept consentand public crime

The concept of a public crime, inherent in the new law, requires consent of the survivor for any further legal intervention. Public crimerequire the state to take action on behalf of the complainant. Irrespective of whether the domestic violence survivor later decides to withdraw the claim or consent for support, the prosecution may proceed to take action against the perpetrator. In accordance with the principle of consentunder Article 5[25]of the new law, the survivor has a right at any time to withdraw consent from further intervention. The question arises as to what happens to the case if the survivor withdraws consent? The provision should be understood to mean that while the survivor has this right to withdraw consent, this however does not mean that the prosecution will have to withdraw the case. If the prosecution finds that there is a prima facie case, the matter may proceed to trial. The point here is that withdrawal of consent does not make domestic violence any less of a public crime, however it will effect the state’s case from an evidential point of view, as it may place the prosecution in a more onerous position to proof the case beyond a reasonable doubt.

3.2 Sentencing inadequacies

In the past, there have been concerns with the legal competency of the judiciary due to lack of training. There has been a case in domestic violence where an all-male panel of judges stated that ‘the cultural situation in East Timor allows a man to control the actions of his wife.’[26] The concern of unskilled judges became alarming on 25 January 2005 when all local judges had failed written evaluation and were suspended from hearing cases.[27] To this effect, it is instrumental that judges undergo training to be able to shift from cultural constrains and be able to recognise domestic violence as a public crime. Only as recent as 2008, it was reported in JSMP’s Case Law Analysis in Baucau,[28]that where a daughter was raped by her father, the courts sentenced the father to merely 3 months imprisonment.

The courts have to treat domestic violence offences seriously when it comes time to pass sentences. Following the sentencing analysis of JSMP in 2008 of the Bacau District Court[29] JSMP found the sentences not proportional to the crimes committed. While the report acknowledged the decisions as positively recognising violence to women, the majority of the decisions choose to apply suspended sentences. This is because in most cases the offences were treated as light maltreatment under the perception that the survivor and perpetrator reconciled. This attitude can lead to undesirable results where, for instance, survivor alleges marital rape and the Courts treat it lightly. In which case, women may feel intimidated by the legal process and opt for traditional justice, instead.

The increased application to suspended sentences in a way condones one of the problems with traditional justice system, that is, the reconciliation of survivor and perpetrator without any significant deterrent to the perpetrator and no assistance to the survivor for the trauma endured. While there is merit to suspended sentences, it cannot be made the norm for domestic violence cases as it certainly mirrors the systemic problem of restorative justice system practiced in through adat – reconciliation without any deterrent to the perpetrator and support to the survivor.

To this extent, the new law places greater emphasis on exercising judicial discretion when sentencing on substitution to imprisonment. In accordance with Article 38 of the new law, the Court may substitute the penalty of imprisonment with a penalty of fine as long as the Penal Code provisions are adhered to and;[30]

  • the security of the victim has been guaranteed;,
  • the perpetrator agrees to medical treatment or to follow up measures by the victim support services; and
  • such a measure is advantageous for maintaining the unity of the family.

In addition, the alignment of the new law with the Penal Code on sentencing means that (Article 67 of the Penal Code)the substitution of prison sentence for fine only applies to prison sentencesnot exceeding twelve months.[31] This in effect means that the court cannot substitute imprisonment with a fine for more serious domestic violence offences, for example rape,[32] sexual coercion,[33] mistreatment of minor,[34] mistreatment of spouse and serious offences against physical integrity.[35]

Clearly, today by virtue of the new law, substitution can only occur for ‘Simple Offences Against Physical Integrity’ pursuant to Article 145 of the Penal Code.[36] This clarity in law will hopefully alleviate the current concerns in JSMP’s watching brief reports[37] on inconsistent sentencing in domestic violence. The prospective watching brief reports by JSMP will be a good indicator on whether the Courts are applying sentencing discretion in accordance with the new law.

4.The new law

In 2002it was reportedthat the Chefes de Sucu and Chefes de Adelais(district village leaders) believe that there was only adat that existed as law and that there was no law at present,[38] this is not the case now in 2010. This is because the Timor Leste Government’s program on justice includes engagement with traditional justice structures, which is currently undertaken by United Nations Integrated Mission in Timor Leste (UNMIT) and the United Nations Development Programme (UNDP) to inform government policy in this area. In addition, the Ministry of Justice in 2009 organised several consultations and workshops on traditional justice in Dili and other the districts. This consultation process may result in the traditional system being more responsive tointroduction of the new law.[39]

The Women’s Justice Unit (WJU) of JSMP and many other NGOs have raised concerns about the patriarchal attitude of the traditional justice system. For instance, the practice of burluque (paid bride) can assume women to be possessions to their spouse and hence the act of domestic violence may not in itself be viewed as a crime but rather a spousal right. The new law may be instrumental in changing such attitude.

The new law mandates training and information sessions for Chefes de Sucu and Chefes de Adelais. This can be seen an important exercise in changing the patriarchal attitude of the village leaders. Such training together with the change under the 2004 election law, which makes female representation at the Sucu Council mandatory[40]may lead to effective traditional justice reform and community attitude towards women.

4.1 The meaning of domestic violence

Under to Article 2 of the new law, domestic violence meansphysical violence, sexual violence, psychological violence and economic intimidation. This includes threats such as intimidating acts, bodily offenses, aggression, coercion, harassment or deprivation of freedom.