Beyond Democratic Tolerance: Witch Killings in Timor-Leste, Rebecca Strating and Beth Edmondson
Timor Leste is one of the world's newest states, having achieved independence in 2002. In its short modern history, it has faced a serious policy question - how should a constitutional democracy deal with legal pluralism and, specifically, how should a predominantly Catholic country deal with the problem of witchcraft? As Strating and Edmondson explain, the killing of witches is a longstanding practice in some regions of Timor Leste and in other nearby states, sanctioned by customary legal norms and practices that are familiar to many citizens.
It has been suggested, whether accurately or not, that a majority of the population may endorse this practice. Yet the newly enacted constitution would clearly outlaw the extrajudicial killing of women who are considered witches, and international legal norms would condemn the practice as a form of gender violence. This article asks whether, in a constitutional democracy, a state should defer to the concept of legal pluralism and allow a serious violation of state law (and of international law) to go unpunished because it is at least arguably sanctioned by custom and by majority sentiment.In traditional EastTimorese society, two types of leaders exist within each suku (village): a spiritual leader, who is responsible for the “cosmos,” and a liurai (political leader), who is responsible for “jural order.”[63] Lian nains (masters of the word) also carry moral authority in East Timorese society and enforce social norms derived from spiritual beliefs. Their roles as “custodians and interpreters of indigenous Timorese animistic cosmology” sees them “dispense justice according to spiritually derived behavioural norms.”[64] Unlike in modern liberal-democratic states, where the laws emphasise the separation of church and state, in Timor-Leste the political leader is subservient to the spiritual leader according to customary law.
Timor-Leste's “multiple and diverse societies” remain rooted in these “traditional” social systems.[65]For the East Timorese, adjusting to a new democratic culture means recognising the authority of the state over that of local leaders and ascribing the political realm primacy over the spiritual realm. As a new liberal democracy, Timor-Leste is experiencing a new emphasis on individuals and a corresponding shift in recognition away from community-located views of citizens/subjects. Social and legal relationships have become redefined as part of the democratising process. [...]
Witchcraft remains a feature of local justice measures in some East Timorese regions. An important role of the lain nain is to draw upon their “localised, spiritual authority,” especially in “prosecution[s] for witchcraft.”[66] In Timor-Leste the nahe biti (literal translation is “stretching out the mat”) customary dispute resolution mechanism is underpinned by two key principles: a willingness to come together and the voluntary confession of culp- ability.[67] These are consistent with customary justice in exchange societies where compensation (“replacing social values”) and badames (forgiveness or reconciliation) are ways of restoring social order. Although each suku interprets nahe biti differently, nahe biti usually results in a violent punishment in dispute resolutions involving accusations of witchcraft. As in other states, such as Papua New Guinea (PNG), violent punishments of witches are targeted towards women in contexts of highly unequal power relationships.
Since Timor-Leste's successful independence referendum, reports have periodically emerged concerning the punishment or killing of accused witches. The Early Warning and Response group recorded 32 sorcery-related conflicts in Timor-Leste from October 2011 to February 2014 across r6 of 65 sub-districts. It appears that sorcery-related violence is not isolated, either in frequency or geographical incidence, and that state institutions struggle to prevent it.
Yen and others observe that the apparent sightings of “witches” and other phantasms occur more frequently during periods of political and social uncertainty. For instance, during the international state-building mission, allegations emerged that a group of men had tortured and killed an elderly woman they had accused of witchcraft in the eastern Los Palos district. Additionally, most instances of witches being tortured or murdered occur in districts that are geographically removed from the administrative heart of Dili - that is, areas where the reach of state agencies remains limited. [...]The difficulties in having parallel and sometimes competing legal systems became apparent in the international state-building phase. In one example, a local man who complained that another man had accused his daughter of witchcraft was directed by a United Nations police officer “to deal with it in a traditional way.”[68] The United Nations police officer rightly acknowledged that he had “no authority to deal with accusations of black magic.” According to Herriman, “the complainant returned and advised the UNPol officer that he had done as told, and dealt with the problem using traditional means; he killed the accuser.”[69] The complainant was then arrested for murder. In this problematic case, ema halo (black magic) was viewed as being beyond the purview of the police officer. Nevertheless, the police office recognised the continuation of pre-existing social structures, wherein “traditional” socially sanctioned retribution might be possible.
A spectrum of customary punishments exists whereby punishments are imposed according to the “severity of witchcraft involved.”[70] Toohey maintains that Timor-Leste “dresses itself up as a Catholic nation,” but culturally and politically embedded animism runs “deeper than all that.”[71] Following independence, the national newspaper Suara Timor Lorosae carried reports of the torture and killing of witches in 2003, 2006, and 2008.
In January 2007 three women in the Liquiςa district unsuccessfully attempted to heal an injured teenager (and distant relative), who then reported seeing the women in a feverish dream. The women were subsequently accused of witchcraft, hacked to death with a machete, and burned along with their houses; the child died 14 days later. Another suspected witch reportedly died after hot coals were placed on her back.A debate emerged in the Timor-Leste Law Bulletin concerning the “democratic” nature of these customary punishments, primarily between Nick Herriman and Warren Wright. Wright expressed concerns regarding the extrajudicial nature of these killings and the challenges they pose for Timor- Leste's democratic institutions. He contends that:
Many anthropologists who lack a comprehension of the concepts of democratic secular law and justice, are ardent supporters of traditional justice systems even though they posit supernatural hypotheses for the explanation of the realities of social disharmony and criminal conduct and impose corporal punishments and worse tortures on citizens accused of the impossible crime of witchcraft.[72] [73] In response, Herriman argues that his fieldwork demonstrates that: Killing “sorcerers” [...] was the wish of almost all local residents - often the “sorcerers” own family, friends, and neighbours. In the sense that it is the will of the majority, it is thus democratic. If a trial by jury were established, I strongly suspect that “sorcerers” would be similarly condemned. I suspect that most villagers in Timor Leste would also wish to kill witches. To the extent that his is true, it appears that democracy is not antithetical to witch killings.11 This debate over the democratic nature of these killings points to the challenges the East Timorese state faces in achieving authority over customary law, including laws concerning the punishment of witches. Controversies concerning issues of legitimate jurisdictional capacities highlight the importance of reconciling diverse views of the public regarding the relationship between citizens' identities and roles, and engendering widespread recognition of the authority of state structures and agencies. Scholars have increasingly recognised the sociological reality in many political communities of legal pluralism. In dealing with diverse sources of law, some have advocated “hybrid” legal systems whereby democratic political and judicial institutions are reconciled with features of customary practices. Peacebuilding missions often fail due to a lack of local legitimacy. In democracies laws must generally be obeyed due to a belief that the universalised application of a state-based rule of law is preferable to other legal systems. Such views are underpinned by a belief in the moral claims of state agents in their legitimate exercise of authority. Expectations and acceptance of codified moral claims are key components of a democratic rule of law that does not rely upon citizens perceiving self-interest or fear in order to comply. Under these conditions legitimacy creates a “voluntary pull toward compliance” that enables consolidated liberal democracies to become politically self-perpetuat- ing.[74] Such beliefs derive from the relationships, structures, and institutions that both enable a generalised rule of law to be exercised and encourage recognition of the legitimacy of government decisions. It is not an easy or rapid process for citizens to adapt to a new sociopolitical organisational system, particularly in parochial and fragmented societies such as Timor-Leste. In Timor-Leste an irreconcilable clash of worldviews is evident: certain communities believe witchcraft is a legitimate crime, but a “rational” state rejects the power of sorcery and thus has no need to protect the community from it. Even if acts of violence against accused witches are an acceptable part of “traditional” or “customary” law in Timor-Leste, they are not based on reason and thus cannot be tolerated by new democratic state structures - otherwise, the authority of democratic government and its ability to establish a universal rule of law would be challenged. Arguments that seek to preserve customary practices for their own sake are problematic for democratic equality in newly independent states for a number of reasons. They can encourage conflict resolution methods that do not conform to acceptable democratic practices or support new citizenship rights. [...] One of the key advantages of state-based legal systems is that they apply equally to all citizens within a territory and correspond with democratic rights established in the constitution, including “the inviolable right of hearing and defence in criminal proceedings.”[75] [...] Nevertheless, there are hurdles to reconciling state-based and customary law without undermining democracy. Problematically, the state-based legal system is not as popular as local systems are. This makes it difficult to legitimise the state-based system while simultaneously relying upon customary systems to fill in the gaps. In Timor-Leste's remote, rural societies there is a lack of knowledge about state-based legal systems and laws, which means that traditional justice is often administered by the lian nain. In these cases, moral order - derived from spiritually based behavioural norms - informs the application of customary law. [...] In Timor-Leste prioritising customary forms of dispute resolution such as extrajudicial punishments for witches may require disregarding gender equality provisions guaranteed in the Constitution. As Swaine demonstrates, women are excluded from playing a substantive role in local justice hearings, and the cultural beliefs and prejudices held by the administrators of justice regarding the status of women in society influence their legal findings. Traditional justice mechanisms do little to protect women from violent and hazardous situations, including accusations of witchcraft. This again reflects the key issue that administrators of justice such as the lian nains are guided by own cultural beliefs which are not supported by the “rational” modern state. Most problematically, culturally relative arguments permit dishonest claims to “cultural” practices, including those that undermine efforts to reduce incidences of gender-based violence. This is a particular issue in Timor- Leste, where rates of domestic violence have been used to reify the idea that such violence is embedded in the “culture” or “tradition.” 2.4