Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (35 page)

More extraordinarily, it is estimated that between 30,000 and 40,000 community members had attended and participated in the hearings.
[19]

In March 2004 the government of Timor Leste held a national dialogue on justice. As part of the preparations for this workshop, consultations were held in each district. In almost every district a major demand of communities was that the CRP program should not be ended as planned but be extended and prolonged.

At the time of writing no final assessment of the program had been made. However, the CAVR conducted an interim review in mid‐2003, which involved returning to communities several months after hearings and conducting interviews with perpetrators, victims, members of the communities and Panel members. The study revealed the following:

• Over 90 percent of all those interviewed stated that the process had been a positive one and that they had been satisfied with its results.
  

• Victims interviewed stated that after the CRP hearings they felt more respected within their communities and there had been a change of relationship with the perpetrator.
  

• Perpetrators interviewed also stated that the CRP process had produced a “significant positive effect” on their day‐to‐day lives. Every
  perpetrator interviewed stated that the process had assisted in repairing the relationship between themselves and their community.
  

• Many victims answered that the process had helped them to understand the motivation and circumstances surrounding the actions of the perpetrator. An important factor for victims was that the acts had been perpetrated during a time of war, and this made them more understandable and able to be forgiven.
  

• All of those interviewed stated that the key to forgiveness lay in the strength of the confession of the Deponents. “If it was felt that a person participating had made a full and frank statement covering all of the events they had been involved in, they were in a sense cleansed and could be received again by their communities.”
  [20]
  

• Victims did not consider that the nature or degree of punishment, or “act of reconciliation” which the perpetrator had to carry out was of crucial importance. If the admissions were full, did not avoid responsibility and the apology was considered to be heartfelt then the major block to acceptance was removed. Acts carried out in furtherance of the agreement were of lesser importance. In fact in many cases victims and communities demanded only a full confession of responsibility and apology, following often extensive and probing questioning on the nature and degree of participation in the relevant events.
  

• Those interviewed said that they felt that the reconciliation achieved through the CRP process would be lasting. “There was a strong sense that once a decision was reached to reconcile it should not be discarded lightly.” Many participants felt that the traditional practices incorporated into the procedures significantly strengthened the agreement to reconcile, and that “both forgiveness and repentance are taken more seriously when made as part of such a ceremony.”
  [21]
  

The Regulation had included some specific requirements for CRP hearings, such as the make‐up of the Panel, the requirement for victims and community members to speak, the need for public apology by the perpetrator and the goal of the Community Reconciliation Agreement, brokered by the Panel. However, the way in which the hearings were to be conducted was intentionally left open. As the program developed, some relatively uniform practices were created by the CAVR, but cultural traditions from different regions also played a major role. Interesting developments in the manner of proceeding include the following:

The people of East Timor have lived for thousands of years with virtually no reliance on any formal system involving police or courts. Justice systems under both the Portuguese colonial administration and Indonesian military occupation were seen to be so corrupt and politically influenced as to be of little value. According to custom, traditional leaders are responsible for making decisions and resolving disputes “based on both facts and principles set by ancestors of the group.” The behavior and activities of members of the society are bound by “collective norms” which are adjudicated by the traditional leaders, who “pronounce these norms, uphold justice and execute justice.” These traditional systems are known as “
adat
.”
[22]

In particular, the traditional dispute‐resolution process of “
nahe biti bot
” or “unrolling of the mat” became a fundamental aspect of most hearings, although it was not formally required and some districts used it less than others.
[23]

A typical CRP hearing incorporating this practice is commenced with a large, simple woven mat being brought to the site of adjudication of the dispute. The mat is ceremonially unfurled onto the ground, symbolizing the opening of the event. Sacred objects are brought, and elders and spiritual leaders sit on the mat and chew beetle‐nut together before commencing. The entrance, unrolling and seating may be accompanied by chanting from traditional spiritual leaders. These leaders will be dressed in traditional attire, which consists of colourful woven textiles, silver breastplates and head‐dresses adorned with feathers or beaten silver horns symbolizing a buffalo. A major aspect of the principle of “
biti bot
” is that once the mat has been unfurled it cannot be rolled up until the disputes have been settled.

The CRP Panel is seated at the front, on the ground or at a table. The mat is unfurled in front of the Panel. Deponents are seated to the left of the Panel's table, victims to the right, with the community in front, thus forming a rectangle, with the “
biti bot
” mat in the centre. After the ceremonial unfurling of the mat, the Regional Commissioner chairing the Panel introduces the hearing, often followed by short speeches by the head of the local government or other officials who may be present. Although initially it was felt that the presence of international observers could distort the proceedings, in fact communities welcomed such participation when it did take place, as a sign of the importance of the undertaking. Observers such as
Mary Robinson, former UN High Commissioner for Human Rights, and Ian Martin, former Special
Representative of the Secretary‐General of the 1999 UNAMET mission attended village hearings and were requested to speak to communities at some point during the hearing.

The requirement that the mat cannot be rolled up until all matters are settled also became an integral part of the process. In many cases matters which had commenced hearing in the morning continued late into the night, sometimes until 2 or 3 a.m. Although a basic lunch was usually provided by the CAVR and community, dinner was not. In one such example the National Commissioner attending reported: “It was incredible. The entire community was there, hundreds of people, almost no‐one was at home, and not one person left before the end, at 2.30 a.m.”
[24]

As the program developed the value of both tradition and law became apparent. There was no requirement to refer specifically to legislation or sanctions, and yet legal provisions were read with significant solemnity and received well by communities. These included an explanation of the procedures and reading of some relevant sections of the Regulation, particularly those relating to the duty to tell the truth, punishments for not doing so, and the relationship with the Office of the General Prosecutor. The letter from the OGP was read out stating that the particular matter has been considered and a decision made not to proceed. It was also explained that the CAVR is an official organization and that reference to the Commission could be found in the national Constitution.

Many participants interviewed stated that the fact that the CRP proceedings had a formal legal base, connected to the OGP and courts was extremely important. Indeed the Commission's CRP represents the first concrete example of implementing a process that spans aspects of both traditional and formal justice practices, in a new format that accords with constitutional and human rights imperatives, and incorporates a written record of the process and content.
[25]

There was one particular unanticipated clash between the legal provisions governing CRPs and traditional
adat
procedures. The Regulation left the power to decide the terms of the Community Reconciliation Agreement in the hands of the Panel. In fact, the design stage had considered whether to require that victims consent to the agreement, and decided to include only a requirement for victims to be heard, not to consent. This was due in part to practical considerations: if there is a formal requirement for victims to consent, how do you ensure that all of those affected by a particular act are present and consent? What happens when eighteen victims of house burnings consent to receiving back a
perpetrator and one does not? In addition, the need to provide closure for a large number of people outside the formal legal system supported not giving victims the right to veto an agreement found to be acceptable by the Panel because of residual, albeit perfectly understandable, anger. (Just as victims do not have such a veto right in other more formal legal systems where, unlike CRPs, they also do not usually have any right to be heard or confront perpetrators.)

However, the design had not anticipated that according to the “
biti bot
” tradition the consent of victims is required for any settlement. In some situations, the Panel, Deponent and community recommended that the perpetrator be accepted back into the community, but individual victims did not. That is, the law did not strictly require the victim's consent, but
adat
did.

Although the basis for the CAVR's activities is in fact the law, not
adat
, in these situations it was clear that, despite the legal provisions, the process could not continue to agreement and settlement. The participation of the relevant Deponent in such hearings was halted, and the Deponent's file sent back to the national office to be forwarded to the OGP. In fact, such cases, although few in number, create a legal challenge for the CAVR. Deponents have applied for a CRP in good faith, the hearing has been conducted and an agreement could probably have been reached between the Panel and Deponent, if not for the lack of the consent of victims, a matter which is not required by the law. However, Deponents, too, understand the
adat
principle and have not complained about the lack of result. In hindsight, greater considerations of the interaction between the law and cultural traditions should have taken place at the design stage. The consent, not just the participation, of victims needed to be an integral part of the legal regime, as it was in the traditional practices.

Surveys conducted across the districts of East Timor have indicated that despite much political rhetoric about the plan to implement the formal justice system mechanisms in a practical way across the nation, the “quasi‐legal” program of CRPs has been the only visible face of the justice system at village level. Although this is evidence of the resounding success of the Commission, it is a somewhat sad comment on the practical difficulties faced in establishing a workable system of justice in a transitional
setting.

The CRP provisions in the Regulation were drafted with much reliance on precedents of individualized justice, civil and criminal procedure.
They deal with individual cases, rights, hearings, and the like. However, a major element of the success of the CRPs has been that the CAVR approached them as a community event, not an individual process. The major stakeholder in the process is the larger group, which includes perpetrators and victims. Accordingly, the program focused on communities, not individuals. This wider approach is fundamental to traditional beliefs and was an integral part of the success of the program.

A major factor which must be considered in designing any program is the quality of the identity of each person involved. In East Timor a person's identity is strongly related to a feeling of belonging to a group, and personal feelings and desires are always mixed with those of the common good of the group. From a western viewpoint this may seem like a contradiction or conflict, that an individual must in some way “sacrifice” what they really want in such a situation. However, in the same way as a western parent will not be making any personal sacrifice in making decisions for the good of his or her children, in societies such as East Timor this broader identity relates to a much larger group, without contradiction or conflict. Accordingly, settlement of a dispute according to traditional means is

 

not necessarily designed to profit the family or individual who has been wronged, but rather provides an opportunity for a feast or distribution of wealth which creates the public symbolic closure of the issue and amounts to a form of reconciliation . . . the hoped for outcome is a redressive process leading to the mutual recognition of the transgression and a satisfactory final resolution of the conflict it has produced. In many cases, the success of this relies on a collective assessment that adequate recompense has been paid, either in suffering or in suitable goods.
[26]

 

The impact of the CRP process on perpetrators must also be understood in the context of communal life. “Loss of face” and shaming through public humiliation in these communities is a much larger sanction, which continues into the day‐to‐day relationships with each person the perpetrator meets after the hearing. For example, the morning following a CRP and every morning thereafter, the perpetrator will walk past and look into the eyes of people who he knows well, and to whom he has admitted his wrongs and requested their forgiveness. It makes little sense to equate or try to understand the strength and effect of such a sanction with reference to a similar admission and apology between strangers in a formal system.