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Published online by Cambridge University Press: 16 April 2015
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.
The observations and analysis in this article are based on Mr. Yogaratnam’s findings during and after an AusAID gender violence project in Timor-Leste (2009–2011). The AusAID project was conducted together with Dr. Suzanne Belton and the Judicial System Monitoring Programme (JSMP) of Timor-Leste.
1 Law No. 7/2010.
2 Constitution of the Democratic Republic of Timor-Leste, s. 16.
3 Ibid., s. 17.
4 Ibid., s. 26.
5 Ibid., s. 9. In particular international obligations under the Convention to Eliminate All Forms of Discrimination Against Women (18 December 1979), 1249 U.N.T.S. 13 (entered into force 3 September 1981) (CEDAW) and the related Protocol which Timor-Leste accessed to on 16 April 2003.
6 Foreword by Her Excellency Secretary of State for Promotion of Equality of Timor-Leste, in “Addressing Gender-Based Violence in Timor-Leste, A Manual for Legal Aid Lawyers – Volume1– Legal Framework” (USAID; JSMP; Asia), online: <http://jsmp.tl/wp-content/uploads/2012/05/Addressing-Gender-Based-Violence-Legal-Guideline-%E2%80%93-Volume-1.pdf> (last accessed at 20 August 2013).
7 Law No. 7/2010, Art. 1.
8 Ibid., Art. 7.
9 Constitution of the Democratic Republic of Timor-Leste, s. 7.
10 An agency of the Timor-Leste Government.
11 The Government of Timor-Leste has established seven working groups on various themes under the National Priority Program for 2009. The themes are food security; access to justice; rural development; human resources development; public safety and security; social protection and social services; and clean and effective government.
12 On 21 December 2012, the Victim’s Support Service of JSMP was launched as an independent legal aid organisation known as Women and Children’s Legal Aid (AlFeLa).
13 This is through the introduction of international law rights for women as enshrined in CEDAW, Convention to Eliminate All Forms of Discrimination Against Women (18 December 1979), 1249 U.N.T.S. 13.
14 P. Levitt & S.E. Merry, “Unpacking the Vernacularization Process: The Transnational Circulation of Women’s Human Rights”, online: <http://citation.allacademic.com/meta/p_mla_apa_research_citation/3/1/0/9/2/pages310922/p310922-1.phpf> (last accessed 21 October 2013).
15 Law No. 7/2010, Art. 7.
16 Ibid., Art. 13.
17 This is part of the compensation in the traditional justice system where an animal is sacrificed as reparation for the crime committed.
18 See P. Levitt & S.E. Merry, “Unpacking the Vernacularization Process: The Transnational Circulation of Women’s Human Rights”, online: <http://citation.allacademic.com/meta/p_mla_apa_research_citation/3/1/0/9/2/pages310922/p310922-1.phpf> (last accessed 21 October 2013), at 109.
19 The formal legal system includes the Constitution of Democratic Republic of Timor-Leste (22 March 2002); the Penal Code (30 March 2009); the Civil Code; United Nations Transitional Administration of East Timor (UNTAET) Regulations; International law; and East Timorese law.
20 John F. McCarthy, “Between Adat and State: Institutional Arrangements on Sumatra’s Forest Frontier” (2005) 33(1) Hum. Ecol. at 57.
21 Ibid.
22 J. Stubbs, “Beyond Apology? Domestic Violence and Critical Questions for Restorative Justice, Criminology and Criminal Justice” (2007), online: <http://crj.sagepub.com/content/7/2/169> (last accessed 15 October 2012).
23 Law No. 7/2010, Arts. 26 and 27.
24 The Constitution came into effect on 20 May 2002.
25 Laura Grenfell, “Legal Pluralism and the Rule of Law in Timor-Leste” (2006) 19 Leiden J. Int’l L. 305.
26 The ODE report, “Violence against Women in Melanesia and East Timor: Building on Global and Regional Promising Approaches” (2009), online: <www.ode.ausaid.gov.au/publications/pdf/vaw_cs_full_report.pdf> (last accessed 20 August 2013).
27 Article 35 of the new law refers to various crimes within the Penal Code that could be classified as crimes in the category of domestic violence. This includes “Mistreatment of Spouse” (Art. 154 of the Penal Code); “Mistreatment of Minor” (Art. 155 of the Penal Code), “Homicide” (Art. 138 of the Penal Code); “Termination of Pregnancy” (Art. 141 of the Penal Code); “Simple and Serious Offences Against Physical Integrity” (Arts. 145 & 146 of the Penal Code); “Sexual Coercion” (Art. 171 of the Penal Code); “Rape” (Art. 172 of the Penal Code) and “Sexual Abuse of a Minor” (Art. 177 of the Penal Code).
28 Article 36 of the new law makes reference to all the Penal Code provisions in Art. 36 of the new law and classifies it as “public crimes” of domestic violence.
29 Simple offence against physical integrity.
30 Serious offences against physical integrity.
31 JSMP and FOKUPERS Report, “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2013).
32 Ibid. at 31.
33 Ibid. at 32.
34 Ibid. at 32.
35 Article 4 of the new law: “Every individual, regardless of ancestry, nationality, social status, gender, ethnicity, language, age, religion, disability, political or ideological beliefs, cultural and educational level, enjoys the fundamental rights in human dignity and shall be assured equal opportunity to live without violence and the right to persevere his or her physical and mental integrity.”
36 See JSMP and FOKUPERS Report, “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2013).
37 Law No.2/2009 (6 May 2009).
38 See JSMP and FOKUPERS Report, “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2013).
39 Law No. 7/2010, Art. 39.
40 Ibid., Art. 5: “[A]ny intervention … shall take place after the victim has given…free and informed consent.”
41 See JSMP and FOKUPERS Report, “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2013).
42 Report by JSMP & FOKUPERS Report: “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2012), online: <http://jsmp.tl/wp-content/uploads/2012/05/Facing-the-Challenges-of-Domestic-Violence-in-Timor-Leste-2011.pdf> (last accessed 20 August 2013).
43 See JSMP and FOKUPERS Report, “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2013).
44 Susan Harris-Rimmer, “After Guns Fall Silent: Sexual and Gender Based Violence in Timor-Leste” (3 November 2009) Issue Brief Number 5: Timor-Leste Violence Assessment, at 5, online: <http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0CEwQFjAE&url=http%3A%2F%2Fmercury.ethz.ch%2Fserviceengine%2FFiles%2FISN%2F143628%2Fipublicationdocument_singledocument%2Fc897f6b2-8502-4d36-8d18-6e714aa40d35%2Fen%2FTimor-Leste-Violence-IB5-ENGLISH.pdf&ei=G-lhUoyuL43uiAefjYHYDg&usg=AFQjCNGWzmTQjkfUtQ1tj_fM2TLrVbtNSA&sig2=ZLx2fx33TrGCHyY-TJybYg&bvm=bv.54934254,d.aGc&cad=rja> (last accessed 20 August 2013).
45 See Report by JSMP & FOKUPERS Report: “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2012), online: <http://jsmp.tl/wp-content/uploads/2012/05/Facing-the-Challenges-of-Domestic-Violence-in-Timor-Leste-2011.pdf> (last accessed 20 August 2013).
46 JSMP, “Overview of the Justice Sector: March 2005” (January 2006) at 20, online: <http://jsmp.tl/wp-content/uploads/2012/05/Final-Overview-Report-2005-e.pdf> (last accessed 20 August 2013).
47 JSMP, “Overview of Justice Sector 2008” (January 2008) at 17, available online at <http://jsmp.tl/wp-content/uploads/2012/05/Overview-Justice-Sector-2008-English.pdf> (last accessed 20 August 2013).
48 This article deals with substitution of prison sentence for a fine. This occurs where the court believes based on surrounding circumstances that the execution of the sentence should not be suspended altogether.
49 See JSMP and FOKUPERS Report, “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2013).
50 Ibid., at 49.
51 Penal Code, Art. 67.
52 Ibid., Art. 172.
53 Ibid., Art. 171.
54 Ibid., Art. 155.
55 Ibid., Art. 146.
56 This is because offences under Art. 145 are punishable with “up to 3 years imprisonment or a fine.” This means that where the court decides to sentence less than 12 months under Art. 145, the court could make a substitution of imprisonment for a fine under Art. 38 of the new law.
57 A watching brief is where an interested party monitors and observes the court proceedings of a case.
58 Law No. 7/2010, Art. 25.
59 M.A. Bere, “Women and Justice in Timor-Leste” (2005) 68 Dev. Bull. at 55–57, online: <https://crawford.anu.edu.au/rmap/devnet/devnet/gen/gen_legal.pdf> (last accessed 20 August 2013).
60 JSMP Annual Report, “2012 Overview of the Justice Sector”, online: <http://jsmp.tl/wp-content/uploads/2012/05/Overview-of-the-Justice-Sector-2012.pdf> (last accessed 20 August 2013).
61 Decree Law No. 39/2012 on the First Amendment to Law No. 11/2008 and the Proposed Amendment No. I/III/I.
62 Foreword by Her Excellency Secretary of State for Promotion of Equality of Timor-Leste, in “Addressing Gender-Based Violence in Timor-Leste, A Manual for Legal Aid Lawyers – Volume 1 – Legal Framework” (USAID; JSMP; Asia), online: <http://jsmp.tl/wp-content/uploads/2012/05/Addressing-Gender-Based-Violence-Legal-Guideline-%E2%80%93-Volume-1.pdf> (last accessed at 20 August 2013).
63 See JSMP and FOKUPERS Report, “Facing the Challenge of Domestic Violence in Timor-Leste: Can the New Law Deliver?” (July 2013) at 3.
64 Law No. 7/2010, Art. 24.
65 Ibid.
66 “Addressing Gender-Based Violence in Timor-Leste, A Manual for Legal Aid Lawyers”, Lawyers – Volume 1 – Legal Framework” (USAID; JSMP; Asia), online: <http://jsmp.tl/wp-content/uploads/2012/05/Addressing-Gender-Based-Violence-Legal-Guideline-%E2%80%93-Volume-1.pdf> (last accessed at 20 August 2013).
67 Law No. 7/2010, Art. 28.
68 Ibid., Art. 22.
69 Ibid., Art. 23.
70 Ibid., Art. 15.
71 Ibid., Art. 16.
72 Pursuant to Art. 16(2), the Social and Solidarity Ministry will define through complementary legislation the procedures common to all shelter – including access to information, admissions, maximum duration of stay, etc.
73 Law No. 7/2010, Art. 17.
74 See JSMP, “Overview of the Justice Sector: March 2005” (January 2006) at 20, online: <http://jsmp.tl/wp-content/uploads/2012/05/Final-Overview-Report-2005-e.pdf> (last accessed 20 August 2013).
75 The other NGOs include the Alola Foundation and church-based organisations such as the Missionary Sister Servants of the Holy Spirit and Santa Bhaktia.
76 Law No. 7/2010, Art. 33 – the Ministry responsible for social services supports the victims in the process of social reintegration as well as in the provision of alimony.
77 See JSMP, “Overview of the Justice Sector: March 2005” (January 2006) at 20, online: <http://jsmp.tl/wp-content/uploads/2012/05/Final-Overview-Report-2005-e.pdf> (last accessed 20 August 2013).
78 Law No. 7/2010, Art. 27.
79 Ibid., Art. 32.
80 D. Mearn, Looking Both Ways: Models for Justice in East Timor (Australian Legal Resources International, 2002) at 30.
81 See JSMP, “Overview of the Justice Sector: March 2005” (January 2006) at 20, online: <http://jsmp.tl/wp-content/uploads/2012/05/Final-Overview-Report-2005-e.pdf> (last accessed 20 August 2013).
82 Ibid.
83 Law No. 7/2010, Art. 9 – this is achieved via the media to combat gender violence and encourage a change of behaviour. The Association of Men against violence (AMKV) – active in engaging men in ending violence against women and working with community to promote gender equality. Some common slogans – “Now that I know if I beat my wife, I will end up in Becora” (Becora is where main prison is located).
84 The new law, ibid., Art. 11.
85 Ibid., Art. 12.
86 This includes the Universal Declaration of Human Rights, GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948); the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976); the International Covenant of Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3 (entered into force 3 January 1976); CEDAW, Convention to Eliminate All Forms of Discrimination Against Women (18 December 1979), 1249 U.N.T.S. 13; the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990); etc.
87 2013 State Budget, Book 4A and Book 4B, cited in “2012 Overview of the Justice Sector”, JSMP Annual Report, “2012 Overview of the Justice Sector”, online: <http://jsmp.tl/wp-content/uploads/2012/05/Overview-of-the-Justice-Sector-2012.pdf> (last accessed 20 August 2013).
88 Ibid., at 87.
89 Ibid., at 61.
