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East Timor's Constitutional Passage to Independence © Copyright by The

East Timor's Constitutional Passage to Independence © Copyright by The

9 East ’s Constitutional Passage to

Louis Aucoin and Michele Brandt

n a post-conflict environment, a con­ • and reflect the concerns and rights stitution-making process has great po- of women, minorities, key stakehold- tential to serve as a and ers, and other marginalized members of Ination-building tool if it is designed to pro- society; mote, when appropriate, the values of inclu- • lay the foundation for more democratic sion, representation, transparency, partici- practices and public participation in pation, and national ownership. How these governance; values should be promoted in any given situ- • foster a more informed citizenry that re- © Copyrightation is context specific. Thereby is nothe one way Endowmentspects the rule of law, questions ofunconsti - to design a constitution-making process. tutional governmental actions, has a sense theHowever, United in cases where States the international Instituteof ownership over ofthe constitution, Peace and is community is supporting a constitution- more likely to defend the constitution. making exercise, it should seek to support, The constitution-making pro- to the extent appropriate, a process that gives cess is a lesson for the international commu­ life to these values. National actors should nity as well as national actors designing or also seek to promote these values because supporting their own constitution-building such a process has the potential to process about creating a process that fails • facilitate conflict resolution by providing a to place these values front and center and mechanism within which a wide range of instead focuses primarily on producing a interest groups can develop consensus on constitution. Although there is no guaran- how to address the past and current causes tee that a representative, inclusive, transpar- of conflict and on an appropriate frame- ent, participatory, and nationally owned and work for governance; led constitution-making process will achieve

245 246 Louis Aucoin and Michele Brandt

the above results, the international commu- pact on improving the process or the result- nity and national actors leading the process ing constitution; and, finally, highlights the should strive to capitalize on the peace- lessons learned from the process. building and nation-building opportunities that this unique moment in history affords or risk creating a document that fuels con- Background flict rather than resolves it. East Timor became the first independent This chapter discusses in depth why East state of the new millennium when its con- Timor’s constitution-making process was stitution came into force and independence largely a missed opportunity to contribute to was declared on , 2002. It was a mo- a sustainable peace in East Timor; delibera- mentous occasion for the Maubere people, tive processes that promote national recon- who have inhabited the eastern half of the ciliation, conflict resolution, and consensus of Timor for more than five hundred building take time, a commitment to public years. During that long history, the Maubere participation, and a representative body to had lived under the yoke of one co- deliberate and adopt the constitution. The lonial power or another, with the exception process in East Timor was rushed, did not of one brief period, beginning on Novem- create the conditions necessary to include ber 28, 1975, when the popular resistance the public in the process, and emphasized an movement Frente Revolucionária de Timor- electoral process that in the East Timorese Leste Independente () declared East context led to single-party domination of Timor’s independence after four hundred the constituent assembly and a resulting years as a Portuguese .1 Very shortly constitution that largely reflected the desires thereafter, on 7, 1975, Indonesian of one party rather than the aspirations of troops invaded East Timor in a move that the as a whole and even of other key had received prior sanction from the United elite power bases. States.2 This chapter, first, provides a background The invasion marked the beginning of to the constitution-making process; second, East Timor’s long and arduous struggle for discusses why the legal framework estab- independence, in which the East Timorese ©lished Copyright a foundation for a flawed process;by third, the people Endowment endured enormous suffering and of sac- reflects on how democratic representation rifice. During the period of resistance to In- may have been achieved through a different donesian rule, it is estimated that more than typethe of selection United and election Statesprocess from two Institute hundred thousand Eastof Timorese Peace lost constitution makers; fourth, underscores the their lives. It was a struggle fought against demand for public participation in the pro- horrendous odds, pitting a small and poor3 cess, but ultimately the lack of commitment, population of seven hundred thousand, in- time, and effective mechanisms to adequately habiting a small half-island with few re- address this demand; fifth, examines the di- sources, against the Indonesian Goliath, with verse role of the international community, a population of 130 million and the advantage including the key role of the , of being viewed as geopolitically important. which contributed to the rushed timetable International attention to the East Timorese of the process; sixth, reflects on the techni- cause during most of this period was either cal assistance to the process, which, given the absent or marked by duplicity.4 For most of structure and composition of the constituent the powers in the , East Timor assembly, could ultimately have little real im- is a remote island, and its remoteness was a Framing the State in Times of Transition 247

factor in both the neglect that characterized ity. In the early part of the period, UDT and Portuguese colonization and the abuse that Fretilin formed a , but it soon col- characterized Indonesian occupation. lapsed. By the end of the period, hostilities East Timor’s first brief experience with had escalated to civil war between Fretilin, independence was preceded by a United which favored independence from , Nations General Assembly declaration in and a realigned coalition comprising UDT 1960 that the Timorese under and Apodeti, which favored integration with Portuguese control were “non-self governing” . On 28, 1975, Fretilin within the meaning of Chapter XI of the declared East Timor’s independence and United Nations Charter, creating a basis for the establishment of the new Democratic East Timor’s right to self-determination.5 of East Timor. Two days later, the Until that point, Portugal had long consid- UDT-Apodeti coalition declared indepen- ered East Timor to be one of its overseas dence and integration with Indonesia.9 These provinces. However, in the aftermath of Por- same parties would later take part in the elec- tugal’s overthrow of its authoritarian regime tion of East Timor’s constituent assembly in in April 1974, it adopted a constitutional law 2001. that set the for the self-determination Indonesia justified its 1975 invasion as of its and provided for a transitional an attempt to pacify the . However, administration in East Timor.6 it later annexed the territory as its twenty- In the meantime, the East Timorese had seventh province in May 1976.10 The United begun forming their own political parties. Nations Security Council’s Resolution 384 Three parties were formed; the first was in 1975 and Resolution 389 in 1976 called the Uniao Democrática Timorense (UDT), upon Indonesia to withdraw its forces imme- which was closely aligned with Portugal and diately; from then through 1981, the Gen- favored the Portuguese proposal for gradual eral Assembly adopted resolutions annually transition toward independence.7 Subse- reaffirming the right of the East Timorese quently, the Associaçao Social Democrata people to self-determination. Though the il- Timorense (ASDT) was formed; the pre- legal was otherwise universally decessor to Fretilin, it advocated the recon- condemned by the international community, © Copyrightstruction of East Timorese by society the on the Endowmentin 1978, became the onlyof coun - basis of indigenous customs and kinship try in the world to officially recognize it, a .8 The third party formed was the decision grounded in perceived geopolitical theAssociaçao United Popular Democrata States Timorense Instituteinterests. of Peace (Apodeti), which advocated integration with From the moment of its invasion to the Indonesia. After the ASDT became Fretilin end of its occupation in 1999, Indonesia in 1972, it undertook an ambitious program maintained a heavy presence. The tackling such issues as health and illiteracy military imposed brutal rule on the territory throughout the provinces. Its well-developed while Fretilin maintained an almost uninter- program and focus on indigenous identity rupted armed resistance.11 Given the dispar- earned it a wide popularity, along with its as- ity of size and power between Fretilin and sociation with indigenous pride. the Indonesian military, and the latter’s per- The months between Portugal’s Carnation sistence in its attempt to annihilate the for- Revolution in April 1974 and the Indonesian mer, the Fretilin fighters’ bravery and tenac- invasion of East Timor in ity were extraordinary. The resistance could were characterized by great political instabil- not have been maintained, however, without 248 Louis Aucoin and Michele Brandt

the equally extraordinary protection of the raised the international profile of the suffer- populace, which often went to great lengths ing of the East Timorese people. to conceal Fretilin members and members In the following years, several of the inde- of its armed wing, called the Forças Arma- pendence movement’s leading figures gained das de Libertaçao Nacional de Timor Leste international attention. In 1992, Gusmão was (FALANTIL).12 The leader of these forces, captured and imprisoned by the , Kay Rala Xanana Gusmão, became the be- who forced him to denounce his fight for in- loved of the nationalist movement, and dependence in a televised appearance. Two the power of his popularity would be signifi- others achieved notoriety in repeated appeals cant in the unfolding of the constitutional to the international community for support. process and the country’s independence. Ul- One was Jose Ramos Horta, a vocal propo- timately, he was elected as the country’s first nent of independence since 1974. The other president. was Carlos Filipo Ximenes Belo, a The Indonesian military’s abuses of the vocal opponent of the Indonesian occupa- East Timorese population during the occu- tion throughout the 1980s. In 1996, these pation have been well documented.13 Indone- two leaders were jointly awarded the Nobel sian values were imposed and East Timorese Prize for Peace, bringing increased interna- culture circumscribed. The military undertook tional attention to East Timorese pleas for an intensive program of forced migration and independence. Nevertheless, Indonesian au- engaged in sexual and forced steriliza- thorities under President remained tion. In its attempt to crush the armed resis- intransigent before these appeals. tance, Indonesian forces conducted saturation In 1998, the Asian economic crisis led to bombing and massacred entire . the and the appointment of During the long struggle for indepen- B.J. Habibie to replace him. Shortly after as- dence, a number of proindependence groups suming office, Habibie announced that he emerged.14 In 1986, Gusmão formed an um- was prepared to accord wide-ranging auton- brella organization called the Conselho Na- omy to East Timor. In the course of that year, cional da Resistência Maubere (CNRM), under the auspices of Ambassador Jamsheed which acted as a shadow government with Marker of , UN Secretary-General ©him asCopyright its leader. By then, several leadingby figthe- Kofi Endowment Annan’s personal representative of for ures of the various political parties were in East Timor, the United Nations led negotia- exile, and they also joined this umbrella orga- tions on the evolution toward East Timor’s nization.the InUnited 1998, the organization States changed autonomy. Institute16 A tripartite agreementof Peace among its name to the Conselho Nacional da Re- Indonesia, Portugal, and the United Nations sistência Timorense (CNRT). was reached on May 5, 1999. Under that The grave and systematic abuses of watershed agreement, the United Nations rights committed during the Indonesian oc- would supervise a “popular consultation” in cupation went almost unnoticed in the in- East Timor, in which the East Timorese ternational community until 1991, when, people would be given the opportunity to ac- on , Indonesian forces opened cept or reject the status of autonomy within fire on an unarmed crowd that was -peace Indonesia. The agreement also provided that fully demonstrating at the burial of a slain if the people rejected autonomy, then the independence fighter. Two hundred East United Nations would assume responsibil- Timorese were slaughtered while foreign ity for the territory during a transition to journalists filmed the incident.15 That event independence.17 Framing the State in Times of Transition 249

On 11, 1999, the United Nations response to a mounting wave of international Mission in East Timor (UNAMET) was pressure, Habibie agreed, and on Septem- established by Security Council Resolution ber 15, the United Nations Security Coun- 1246, in accordance with the May 5 agree- cil adopted Resolution 1264, establishing a ment. UNAMET immediately set up op- multinational force to quell the destruction erations in East Timor to prepare for the in East Timor. The International Forces in referendum on autonomy, which, accord- East Timor (INTERFET), acting under ing to Resolution 1246, was to take place in the direction of Australian Major General ­. However, even before UNAMET , commenced operations on became operational, the security situation in September 20. By the end of , IN- the territory began deteriorating. Although TERFET had established security and was Habibie had consulted with the Indone- acting as a de facto administration in the ter- sian generals in connection with the May 5 ritory. It remained in East Timor through agreement, factions of the military, as well as February, when it transferred its authority to prointegrationist East Timorese militia, were forces under the United Na- violently opposed to independence. tions Transitional Authority in East Timor In spite of the sporadic violence and in- (UNTAET), established by Security Council creasing security problems, UNAMET pro- Resolution 1272, adopted on October 25. ceeded with its planning and supervision Under its mandate, the broadest in the of the referendum after Indonesian Gen- history of the United Nations, UNTAET eral presided over the signing of acted as the de jure transitional government an agreement to cease hostilities. Violence of the territory, with executive, legislative, nevertheless continued up through the day and judicial authority. Because one of the key of the referendum on , 1999. On components of the UNTAET mandate was that day, 432,287 East Timorese—98.4 per- to “consult and cooperate closely with the cent of the eligible voters—went to the polls East Timorese people,”20 one of its first steps amid the violence and intimidation and cast was to consult the political leadership of the their votes;18 78.5 percent of them favored country under the umbrella of the CNRT. independence. Gusmão took up leadership of the CNRT © CopyrightProintegrationist militias supportedby the by In- Endowmentafter his release from prison in Indonesia of and donesian forces immediately responded with return to East Timor in October 1999.21 a scorched-earth campaign of destruction. UNTAET did not have a plan for devolv- theMore United than one thousand Statespeople were killed, Instituteing power to the Eastof Timorese. Peace Instead, vast portions of the population were forced the UN transitional administrator, Sergio to flee into the mountains and across the Vieira de Mello, developed ad hoc approaches into , and the UNAMET to as he implemented and in- headquarters in was forced to evacuate terpreted UNTAET’s mandate. Initially, its personnel.19 In the ensuing weeks, at least UNTAET acted as a caretaker government 80 percent of the country’s infrastructure and did not bring East Timorese into the was pillaged and burned in a carefully or- transitional administration to share govern- chestrated program of devastation. ing authority. Rather, the transitional ad- In early September 1999, ministrator governed the territory with the president Bill Clinton severed military ties policy advice of a fifteen-member National with Indonesia and insisted that President Consultative Council (NCC), composed of Habibie invite international intervention. In both East Timorese, largely from the CNRT, 250 Louis Aucoin and Michele Brandt

and foreign UN mission staff. The transi- took effect on May 20 of that year. On that tional administrator chose not to promulgate date, chosen to coincide with the founding a regulation or endorse a policy unless it had of Fretilin’s predecessor, UNTAET brought been agreed upon by the NCC, giving this its mission to a close and fully transferred body practical veto power for its key mem- authority to the newly created state. bers, including Gusmão. Responding to the need to further de- volve power, as well as to popular criticism of Structure of the Constitution-Making Process the slow pace of reconstruction, about seven months into the mission the transitional ad- Debates on the Legal Framework ministrator dissolved the NCC and estab- In establishing UNTAET, Security Coun- lished a thirty-six-member National Coun- cil Resolution 1272 did not specify how the cil (NC) composed solely of East Timorese. shift from a UN transitional administration The NC, with Gusmão as its speaker, was a to an independent East Timor would take quasi-legislature, with the power to initiate, place. Unlike the peace processes in Cam- recommend, and amend transitional regula- bodia or (see Chapters 8 and tions as well as call cabinet members to an- 20), there was no peace agreement specifying swer questions about their respective policies 22 that a constitution would be a component of and programs. The transitional administra- the state-building effort. In April 2000, de tor created additional structures in which Mello briefed the Security Council and un- East Timorese leaders shared power with derscored that UNTAET was formulating UN personnel, including an eight-member a detailed strategic plan, including bench- (half East Timorese) Cabinet of the Transi- marks, that would lead to the phasing out 23 tional Government and a transitional ad- of UNTAET, devolution of power to East ministration responsible for public admin- Timorese authorities, and establishment of istration. Some functions remained directly an independent East Timor. One of the key under UNTAET’s control, however, includ- benchmarks in this plan was the drafting of ing the peacekeeping force, foreign affairs, an independence constitution.24 and the implementation of the transitional CNRT’s diverse membership met several ©process, Copyright in particular the elections by and con the- times, Endowment in part to discuss how East Timor’s of stitution making. hoped-for independence constitution would theAfter nationalUnited elections for Statesa constituent be Institute created. In August 1998, of CNRT Peace members assembly in August 2001, the transitional gathered to develop a set of policies for the administrator retained executive authority development of the country in every sector, but delegated responsibility for day-to-day including constitutional, health, education, governance to the transitional administra- judicial, etc. Two more conferences were tion, now under the control of a fully East held in April 1999 in Melbourne and May Timorese cabinet. , a Fretilin 2000 in Tibar, East Timor. CNRT also held member who had returned from exile in a National Congress in August 2000 to re- , was chosen as prime minister. view its structure and vote on policy recom- UNTAET’s final tasks were to organize mendations that had emerged from the con- the election of the country’s first president ferences. Throughout these policy-planning and support the elaboration of the country’s meetings, the preferred model for drafting independence constitution. That constitu- East Timor’s independence constitution was tion was adopted on March 22, 2002, and a constitutional convention. Framing the State in Times of Transition 251

Over three hundred participants gathered The defining events of the political transition at the CNRT conference in Melbourne, held are the adoption of a constitution and the hold- ing of elections. Elections will choose a April 5 to April 9, 1999. They recommended Constituent Assembly which in turn will write, that a special convention be established, com- debate and adopt a constitution. Following its prised of all social and political groups; this adoption, the Constituent Assembly will be- convention, in turn, should appoint a com- come the Parliament (or legislative assembly) of 26 mission of legal professionals to assist with the new country. the drafting process. The CNRT participants This was markedly different from the at the Melbourne conference did not fore- model proposed by CNRT. In August 2000, see that Indonesian armed forces and East participants from every district in East Timor Timorese militia would launch a scorched- attended the CNRT National Congress and earth campaign after the results of the 1999 there agreed that a constitutional commis- referendum were announced. They assumed sion, in consultation with the East Timorese that existing structures would be in place people, would first draft the independence when they began the difficult task of recon- constitution. The draft constitution would structing East Timor. When it became clear, then be submitted to an elected constituent following the postreferendum violence and assembly for approval and adoption. The con- destruction, that reconstruction had to begin stituent assembly would also be tasked with from nearly the ground up, the Melbourne conducting further consultations and mak- conference recommendations needed to be ing any necessary amendments to the draft. reviewed in light of the new circumstances. These recommendations were adopted by a Nearly three hundred people again gathered vote of 290 delegates in favor, 8 against, and for the meeting in Tibar, East Timor, from 42 abstaining. May 29 to June 2, 2000, under the auspices At the same congress, the transitional ad- of the CNRT to attend a conference entitled ministrator addressed the CNRT delegates “Reconstructing East Timor: Analysis of the and suggested two different options for Past and Perspectives for the Future.” adopting the constitution. The first model The participants restated the strategic plan he presented was to select a representative to draft a constitution agreed upon in Mel- constitutional commission to prepare a draft © Copyrightbourne but added that a constitutional by the work- Endowmentconstitution, with the possibility of ofa referen - ing committee should be formed to draft the dum on the draft being held at the same time theconstitution, United and that this States committee should Instituteas the national elections of for Peacethe members of establish a mechanism to ensure full public the constituent assembly. If the draft con- consultation and participation in the pro- stitution were approved in the referendum, 25 cess. The CNRT and civil society stressed a provisional government would be formed the importance of public participation in the on the basis of the system of government making of the constitution, regardless of the outlined in the approved draft. The elected model of constitution making chosen. constituent assembly would then serve as However, at the Tibar meeting, the Po- the interim legislature until preparation and litical, Constitutional, and Electoral Affairs adoption of the final constitution. Department of UNTAET (Political Af- The second alternative proposed was fairs Department) announced the following that offered by the Political Affairs Depart- model of constitution making, which did not ment of UNTAET a few months earlier at provide for an independent commission or the Tibar conference: to elect an assembly stress the role of public participation: that would both draft and adopt a constitu- 252 Louis Aucoin and Michele Brandt

tion. The transitional administrator stressed tasked with examining the electoral and con- the need for widespread participation in the stitutional processes for East Timor. On De- drafting of the constitution regardless of the cember 12, 2000, he submitted the political model chosen, noting that “[t]he constitu- transition to the National Council. tion will stand the test of time if it has been It was entitled “Broad Timeline for the Pro- drafted in a participatory manner and has cess Leading to East Timor’s Declaration of emerged from the real lives and aspirations Independence.” The calendar proposed that of people.”27 the constitution should be debated, drafted, Approximately one month after UNTAET and adopted in a period of ninety days. After officials presented constitution-making op- a few hours of debate, the National Coun- tions to the CNRT National Congress, the cil determined that it did not have enough transitional administrator briefed the Secu- ­information to decide the matter and re- rity Council on September 29, 2000, de- quested that the Standing Committee hold scribing the political transition process that hearings and provide the council with a set would take place in East Timor. He outlined of recommendations on the subject. the same constitution-making approach that On December 23, in his role as presid- the director of the Political Affairs Depart- ing member of the Standing Committee, ment, , had presented at the Gusmão drafted a letter to representatives earlier Tibar conference. Transitional admin- of political parties, civil society, the church, istrator de Mello stated that and academia; he attached a copy of CNRT’s political transition calendar and requested [t]he major elements of political transition are comments on the plan. Gusmão highlighted clear. As things currently stand, our plan is to hold national elections in the second half of the questions that for him remained out- next year with a view to establishing a Con- standing, such as how many representatives stituent Assembly. This Assembly will be tasked the constituent assembly should have and with drafting the Constitution, choosing the the appropriate process to elect its members. members of the new transitional government It did not seek alternative views on the ap- and serving as an interim legislature. Upon proach to constitution making. completion of the Constitution, the Assembly would become the new National Assembly of From 18 to January 23, 2001, the ©an Copyrightindependent East Timor.28 by theStanding Endowment Committee invited some of thoseof who had received the letter to comment on No mention was made of a representative the calendar at public hearings. Through- commissionthe United or of public consultations. Statesout Institute the five-day period, the of committee Peace heard In November 2000, Gusmão, as president or received written testimonies from approx- of CNRT, provided the transitional admin- imately twenty-six East Timorese, including istrator with a political calendar outlining representatives of political parties, civil- suggested steps towards independence. The society organizations, the , broad framework followed the model that and the University of East Timor, as well as the transitional administrator had discussed two CNRT members, an UNTAET cabinet with the Security Council at the end of minister, and a District Advisory Council September. member from Liquica. In addition to serving as the president During the hearings, most of those who of CNRT, Gusmão was also the presiding testified preferred that an unelected body, speaker of the National Council and the pre- such as a constitutional convention or com- siding member of its Standing Committee mission, consult with the population and on Political Affairs (Standing Committee), draft the constitution, in keeping with the Framing the State in Times of Transition 253

earlier CNRT positions. Only five of the making hundreds of decisions, and those political parties represented agreed that an decisions should not be made by appointed elected body, such as a constituent assembly, officials, but by elected representatives. He should draft the constitution. However, most pointed out that a constituent assembly also preferred that a constituent assembly would have power to decide how it would should adopt the draft constitution. Many draft the constitution, what type of constitu- underscored that this two-stage process tion it would be, how it would be ratified, would allow for broad participation from di- and how much debate should be involved in verse sectors of society, including technical its adoption. This opinion did not reflect the experts. Some of those testifying were famil- history of constitution making, whereby un- iar with constitution-making processes that elected although representative bodies had had taken place in , such as the South often prepared or debated the constitution, Africa process, which had prioritized wide- as in constitutional conferences in West Af- spread public participation in the prepara- rica or the two-stage processes that began tion of the constitution. with a constitutional commission preparing Aderito Soares, speaking on behalf of the the draft prior to submitting to an elected Jurists Association and as a CNRT mem- body. Moreover, constitution-making bodies ber, expressed grave concern about the pro- were often mandated to ensure widespread posed political transition process. He under- public participation in the process, includ- scored that the CNRT National Congress ing providing comments and suggestions on had agreed to a constitutional convention drafts of the constitution. that would consult widely with the public. The director of political affairs’ position He also expressed concern about the pro- also failed to account for the dominance of posed structure and the short time given the Fretilin party, which was virtually as- to complete the process. Joaquim Fonseca sured of a landslide victory in the elections. of Yayasan Hak, a group, also This was a key factor in the views expressed noted that the process under discussion was by those favoring a more participatory and inconsistent with the consensus reached at representative model of constitution making, the National Congress. The NGO Forum, an which would have more reflected the trends © Copyrightumbrella group for non-governmental by the orga- Endowmentand international standards of constitution of nizations (NGOs) in East Timor, raised the making at the time. Civil society as well as same issue and asked what had happened to other leaders in Timorese society wanted the thethe NationalUnited Congress’s recommendations.States Instituteprocess to be an opportunity of Peace for consensus In his role as a cabinet member, the direc- building by allowing all of the various po- tor of UNTAET’s Department of Political litical voices in East Timor to be heard. They Affairs, Peter Galbraith, also gave his views saw this as preferable to a process that would, about the process. Similar to his speech in in effect, allow one political group to decide May 2000 at the Tibar conference, he again all of the key constitutional issues for the en- explained that “the final phase of the Politi- tire country, which could lead to an illegiti- cal Transition begins with the election of a mate constitution that was not owned by all constituent assembly with a mandate to pre- citizens. pare the Constitution for an independent After the hearings, the Standing Commit- East Timor.” However, he also described tee of the National Council reported back to his views about why it was important that the council and made a series of recommen- an elected body draft the constitution. He dations for the electoral law; their recom- stated that creating a constitution involves mendations only slightly revised the political 254 Louis Aucoin and Michele Brandt

transition calendar. Few of the suggestions process that educates the public on the role made by the East Timorese who testified of a constitution and constitutional issues as before the Standing Committee were incor- well as carefully consults the public on con- porated, and the suggestion by most—that stitutional issues requires time. an unelected body draft the constitution and Even though the time frame was short, that sufficient time be allocated for the pro- Regulation 2001/2 was skeletal; it did not cess—was not among them. contain constitutional principles, rules of Although the Standing Committee had procedure, or guidance on a work plan or re- held public hearings on how the process quire public participation in the process. This should be structured, ultimately it was a few led to confusion throughout the process, as political elites and key UN officials who de- the East Timorese rushed to prepare a draft cided that an elected body should not only de- yet had little or no experience regarding how bate and adopt the constitution but also draft to go about doing so. the constitution in a period of ninety days. On March 16, 2001, the National Council adopted UNTAET Regulation 2001/2 on The Deliberations in the Assembly: Single-Party the Election of the Constituent Assembly.29 Domination On September 15, 2001, Vieira de Mello swore in East Timor’s first constituent as- The Legal Framework sembly. The members faced a daunting task. Regulation 2001/2 called for the election of Although time was very limited, the assem- an eighty-eight-member constituent assem- bly spent three weeks drafting and debating bly, seventy-five members of which would the internal rules of procedure. In the end, be nationally elected on the basis of propor- it roughly adopted the rules of procedure tional representation and thirteen of which of the Portuguese Assembly, but these were would be elected on a first-past-the-post ba- ill-suited to a body that should have been sis in each of East Timor’s thirteen districts. ­attempting to create a constitution by con- The regulation provided that the constituent sensus rather than majority rule. assembly should adopt the draft constitution The rules established a forty-two-member ©within Copyright ninety days from its first sittingby by thean systemization Endowment and harmonization committee of affirmative vote of at least sixty of its eighty- (SHC) to agree upon the structure of the con- eight members. stitution, establish thematic committees, and theRegulation United 2001/2 also gave States the assem- integrate Institute the individual articlesof Peace developed bly the option of choosing to transform itself and approved by the committees into the body into the nation’s first parliament. That an -as of the constitution. Although Founda- sembly dominated by Fretilin—a foregone tion consultants who were providing techni- conclusion—would choose to do so was cer- cal advice suggested that the assembly take tain. This provision incorporated an inher- time to prepare a constitutional agenda and ent conflict of interest because the assembly agree upon constitutional principles to guide would be deciding the parameters of its fu- the process, this suggestion was sidestepped ture powers. in the rush to prepare a draft. The SHC cre- The ninety-day time frame was also cer- ated four thematic committees. Committee tain to exclude widespread public consulta- I focused on fundamental rights, freedoms, tions on the draft constitution or a process and duties, as well as national defense and se- of careful deliberations within the assembly curity; Committee II focused on the organi- itself. The preparation of a constitutional zation of the state and political power; Com- Framing the State in Times of Transition 255

mittee III focused on economic, social, and By November 30, 2001, the SHC had financial organization; and Committee IV harmonized the recommendations submit- focused on fundamental principles, control of ted by the thematic committees and the ple- constitutionality, amendment of the constitu- nary had agreed upon a draft constitution on tion, and final and transitional provisions. which to debate. Consequently, even though The president of the assembly, Francisco the assembly had begun deliberating on the Guterres (“Lú-Olo”), told the members that day it was sworn in, when the ninety-day pe- they should agree upon draft provisions for riod set for adopting the constitution expired their respective subject areas by referring to on December 15, 2001, it still had over one the few drafts of the constitution submitted thousand pending votes on proposed consti- by political parties. The Fretilin draft con- tutional provisions. As a result, the process stitution had been prepared in 1998, well in was extended from December 15, 2001, to advance of independence. It was largely in- March 22, 2002. spired by the constitutions of Portugal and Throughout the process, the assembly’s Mozambique.30 The committees were also to plenary sessions and thematic committee call experts to testify on their specific subject hearings were made accessible to the public. matter at public hearings. The committees However, the general public had little aware- were initially given only ten days to review ness of the contents of the draft. The debates the parties’ draft constitutions, hold public in the assembly were broadcast live over the hearings, and provide their recommenda- radio, but they were often difficult to follow tions to the SHC. and it was not always easy to determine what The thematic committees began meet- had been concluded. ing on October 17 and immediately began For those members of the public attend- preparations for public hearings. They -in ing the sessions, simultaneous translation was vited representatives of civil-society groups, provided in English, Tetum, Portuguese, and international organizations, UNTAET, the Bahasa. Initially, it was difficult for members East Timor Public Administration (ETPA), of the media to obtain information about and the Church to prepare submissions and developments and the agenda. In response to scheduled their appearances. In addition, the requests, the secretariat assisted the assembly © CopyrightAsia Foundation provided constitutionalby the ex- Endowmentin developing daily press briefings ofand posted perts to each of the committees. the agenda at the entrance to the assembly. All of experts noted These were positive steps in making the pro- thethat thoughUnited many groups States provided useful Institutecess more accessible andof open. Peace Indeed, as the submissions, the committees rarely referred process evolved, the leaders in the assembly to them in their deliberations. Instead, the began to be more and more open about shar- committees focused on reviewing the Freti- ing their early drafts with the public and al- draft, and by taking that draft as their lowing the public to be present in nearly all point of departure, the committees failed to its discussions and deliberations. Indeed, it develop the constitution from the ground was rare that a session would be closed; this up, examining and discussing which options only occurred if small groups were meeting would be most suitable for East Timor. Also, to try to reach consensus on sticking points. because the focus was on the Fretilin draft On February 9, 2002, the assembly ap- rather than an agreed set of principles and proved the first draft of the constitution. goals for the nation, the discussions occa- Sixty-five members of the assembly voted sionally focused on issues that had no rel- to approve the draft, thirteen members ab- evance to East Timor. stained, and ten members were absent. In the 256 Louis Aucoin and Michele Brandt

end, that document very closely resembled countability before the electorate. One dis- the original Fretilin draft. Due to the clamor advantage was that it would likely lead to a for effective popular consultation, members two-party system, which would discourage of the assembly then engaged in one week plurality. The proportional system offered the of popular consultation during February, re- advantage of placing all voters on an equal viewing the recently approved draft with the footing and encouraging plurality. A dis- population. Subsequently, the assembly made advantage was the lack of accountability to minor changes to the February 9 draft, and constituencies. Though a preference for the on March 22, 2002, the assembly adopted proportional system was expressed because it the new constitution by a vote of seventy- was the system used in the continental tra- two members in favor and fourteen against, dition with which the East Timorese were with one abstention and one absence due to most familiar, in the end, the regulation put illness.31 in place a hybrid system. By its own terms, the constitution would For the national elections, parties were take effect and East Timor would achieve its allowed to submit lists of up to seventy-five independence on May 20, 2002.32 The as- names; these candidates were to be elected sembly chose that date because it marked according to a somewhat complex formula the twenty-eighth anniversary of the found- set out in Section 37.1 of Regulation 2001/2. ing of ASDT, the predecessor of the Fretilin Independent candidates, who were allowed to party.33 for both national- and district-level seats, had to gather five hundred signatures for reg- istration on the national level and one hun- Democratic Representation dred signatures for registration for the dis- In the early part of 2001, the NC organized trict elections. In calculating election results consultations to determine the structure of at the national level, independent candidates the constitution-making process. The re- were to be treated as belonging to a political sults of the consultations were summarized party that only entered a single candidate. in a document entitled “The Report on the One key recommendation in the PAC re- Political Transitional Calendar compiled by port that was not incorporated into UNTAET ©the StandingCopyright Committee of Political by Affairs the Regulation Endowment 2001/2 was that 30 percent ofof the of the National Council,” referred to as the seats in the constituent assembly should be PAC report. Most all of the PAC recom- reserved for women. The issue proved to be mendationsthe United relating to the electionStates of the hotly Institute contested; UNTAET’s of director Peace of po- constituent assembly were incorporated into litical affairs and the chief electoral officer UNTAET Regulation 2001/2. That regula- were strongly opposed to the quota and lob- tion set out the basic electoral rules, which bied against it; Gusmão, however, expressed included a determination of the electoral strong support for it. In the end, the proposal system; the issue had been discussed during failed to garner enough support in the NC the consultations that formed the basis of the and was rejected.34 PAC report. Three options were considered: a In addition to determining the nature of majority/plurality option, a proportional list the electoral system and establishing rules option, and a hybrid of the two. Some advan- for party registration, Regulation 2001/2 set tages of each of the systems were considered. August 30, 2001, as the date for the election The majority/plurality option was viewed as and provided for the creation of an inde- offering the advantage of the personaliza- pendent electoral commission, composed of tion of the candidates and assuring their ac- three international electoral experts and two Framing the State in Times of Transition 257

East Timorese. The electoral commission was seemingly positive aspect of the process must given broad authority over the conduct of be assessed as part of the process as a whole. the election, including the power to imple- The regulation established a system whereby ment the rules established under Regulation only elected officials would be allowed to 2001/2, resolve disputes arising under them, take part in the constitutional drafting pro- and establish rules of its own. Among the cess. In a post-conflict context, this type of rules established by the electoral commission system often advantages political elites, who was that requiring parties to confine their are better prepared to participate in an elec- campaigning to the period between July 15 tion. Determining who drafts the constitu- and August 28, 2001. Some saw the rule as tion through an election may not lead to a offering too little opportunity for new par- representative body in all cases that ensures ties to develop and promote their programs. that all voices of the people are heard, in par- This failing was seen in turn as reinforcing ticular those of women or rural poor. Fretilin’s advantage, which everyone involved Because it was a foregone conclusion that in the process acknowledged as significant. Fretilin would win any election by a signifi- The election was held on August 30, 2001, cant margin, structuring the process as the with sixteen political parties having regis- regulation did precluded the formation of a tered.35 These parties represented a variety diverse body, without perhaps strong politi- of interests, such as Christian values, rejec- cal ties, to consult with the public about what tion of communism, protection of landown- should be included in a draft constitution ers, economic liberalism, protection of local and share this with an elected body. To avoid custom and tradition, alignment with Por- a constitution-making process represent- tugal, alignment with Indonesia, securing of ing merely the division of spoils by elites, an reparations from Portugal, and promotion of emerging trend in constitution making is to youth and labor. Several of the parties were have a two-phase approach to the process: the new, appearing for the first time in East formation of an appointed, broadly represen- Timorese politics specifically to compete in tative constitutional commission to develop a this election. draft constitutional text and adoption of a fi- By June 22, 2001, near the cut-off date for nal constitution by an elected body or a body © Copyright voter registration, 775,602 byvoters hadthe reg- Endowmentthat is both selected and elected to ensureof the istered, and on August 30, 2001, 91 percent diversity of the nation is represented. of the eligible voters cast ballots.36 In accor- An independent commission or technical thedance United with the election States results, twelve po- Institutedrafting body has often of been Peace used to prepare litical parties and one independent member a draft constitution because it tends to be gained seats in the assembly. Fretilin won more distanced from political agendas and fifty-five seats. The remaining seats were- di may allow for greater diversity of views, im- vided among the others, with no other party proved opportunities for consensus building, gaining more than seven seats. The leaders of input of experts, and greater public partici- the constituent assembly included Francisco pation. Nonetheless, establishing an effec- Guterres from Fretilin as president, Arlindo tive constitutional commission has been very Francisco Marçal from PDC as a vice presi- challenging in recent constitution-making dent, and Francisco Xavier do Amaral from processes. In processes directed by a consti- ASDT37 as another vice president. tutional commission, the goal is to choose an Clearly, UNTAET Regulation 2001/2 pro- independent and diverse group that is small vided for democratic representation in the enough to manage the tasks of drafting the constitution-making process. However, this constitution efficiently and assuring public 258 Louis Aucoin and Michele Brandt

buy-in of the process. To achieve such ends, idency and a dominant parliament—hardly a commission often includes professionals, the result that the population had sought youth, women, the disabled, veterans, mi- during the abortive period of popular con- norities, and other relevant groups in society sultation (described in the next section). who often may not have access to the formal In addition, the process failed to create system. the political space for minority voices to be This observation obviously raises the ques- heard. This state of affairs set the stage for tion of how the commission should be se- the president, who enjoyed wide support lected. This is a difficult question because the among the population, to exercise powers answer is so closely related to the desired end, beyond the narrow strictures of the consti- which is to create a commission that assures tution; it also planted seeds for future con- buy-in by the population and reflects as broad flict. This scenario did not bode well for the a range of political, ethnic, religious, and other nation-building process or the constitution’s groupings as possible. In most recent cases, sustainability. the protagonists of the process have agreed on the general nature of the desired com- position and, in some cases, have achieved Public Participation it through a selection process in accordance Debates on the Framework for Public with these principles. This, however, does not Participation mean that the same result cannot be achieved through a carefully designed electoral process. Of all the issues that were debated in early The point here is that the emphasis is not on 2001, the two most controversial were the the mode of the selection or election, but on role of public participation in constitution the desired composition and having a flexible making and the time frame of the process. mode of selection or election to best achieve During the consultations that formed the that result. In many post-conflict contexts, basis of the PAC report, those testifying where nascent political parties do not have a widely agreed that an independent consti- strong representational basis, democratically tutional commission should conduct a pro- elected representation may not lead to repre- gram of civic education and public - ©sentation Copyright of the aspirations of the by people theas tation, Endowment and that the views expressed during of well as the political elite. such a process should be integrated into the In East Timor, the constitution-making draft submitted for debate and ratification by processthe did United not lead to a broadly States based rep- the Institute constituent assembly. of Catholic Peace resentative body either to consult with the advocated the adoption of an interim consti- public or prepare the constitution. With fifty- tution, to be followed by the establishment five of the eighty-eight seats in the assem- of a constitutional commission that would bly, Fretilin was just short of the two-thirds prepare the final constitution for adoption by 38 majority required under Regulation 2001/2 an elected body. These views coincided with to adopt the new constitution, but with its those put forward in earlier policy recom- close links to a few small parties, it effectively mendations by CNRT. controlled the necessary votes. This meant UNTAET Regulation 2001/2 did not in- that Fretilin did not need to build consen- corporate the above views, but a young East sus or compromise for the constitution to be Timorese lawyer who represented Yayasan ­adopted. This factor contributed to the re- Hak, East Timor’s leading human rights sulting institutional arrangements set out in NGO, attempted to remedy the situation. the final constitution, including a weak pres- He presented a draft regulation to the Na- Framing the State in Times of Transition 259

tional Council proposing the appointment formally submit their views at public of an independent constitutional commis- hearings held at the Sub-Districts sion. It would be composed of twenty-six level; East Timorese who had no official affiliation (d) Reporting Phase, during which mem- with the Transitional Administration of East bers of the Commission compile Timor (ETTA) or with UNTAET, nor were the views expressed during the Con- they active members of any political party sultation process and draw recom- or group. The commission would be selected mendations for submission to the from diverse sectors of the society, including constituent assembly; “representatives of the academic institutions, (e) Drafting Phase, during which mem- youth groups, representatives of religious bers of the Commission assist the denominations, a representative of the Na- constituent assembly with the draft- tional Council, and the NGO forum.” Two ing of the Constitution.39 commissioners—one man and one — The commission’s work was to be carried out would head an office in each of the coun- over twelve months, nine of which would try’s thirteen districts. Each office would be be spent on the first three phases with three responsible for conducting consultations in months devoted to the last two. their district. The commission would be as- Though the proposal received wide sup- sisted by a national planning team composed port from civil society, it proved to be one of nationals and foreign experts, who would of the most contentious events in the devel- coordinate the work of the commission. They opment of the constitution-making process. would have expertise in “constitutional pro- Notably, the proposed regulation was incon- cesses, including experience in the consulta- sistent with Regulation 2001/2, which had tion and drafting of a recent constitution, already been adopted. The UNTAET Po- political science, anthropology, education, litical Affairs Department and Fretilin op- particularly experience in mass education in posed it on the grounds that it required an a , economics, legal draft- expanded time frame to draft the constitu- ing, human rights law, and .” tion, it was overly complex and cumbersome, Section 3.2 of the proposed regulation and it provided that an unelected commis- © Copyrightprovided the following: by the Endowment of sion would draft the constitution. The work of the Commission will be di- Had the proposed regulation been ad- thevided United into the following States successive phases: Instituteopted, it may have beenof viewed Peace by the UN (a) Public Information Phase, which will as requiring the extension of the UNTAET include mass dissemination of infor- mandate—a difficult proposition given that mation on the Nature of a Constitu- some member states in the Security Coun- tion and the decisions needed to be cil were already questioning the enormous taken for its adoption; expense entailed in the United Nations’ (b) Debating Phase, during which mem- administration of a country so small.40 The bers of the public will be assisted in resource issue should not have been a stum- discussing the key issues under the bling block, however, as the Security Council Constitution through debates, work- had already agreed to a UN support mission shops or group discussions from the after the conclusion of UNTAET’s mandate. national to the community level; Nevertheless, it was clear that for UNTAET, (c) Consultation Phase, during which early adoption of a new constitution would members of the public will be able to be a benchmark of success for the mission, 260 Louis Aucoin and Michele Brandt

which needed to illustrate results to justify ing of the Constitution. This process will need its huge costs. to balance the urgency of East Timor becoming an independent country with the essential need The proposal was the subject of heated de- for the Constitution to be a document reflecting bate in the NC. Gusmão supported the pro- the aspirations of the East Timorese people. posal, as did the NGO community. This was For this to happen, the East Timorese people a significant reversal, given that Gusmão had have to be provided with the information on proposed the political calendar that called for the choices that have to be made, information a ninety-day time frame for the constitution- on what a Constitution is, information on the making process. Aderito Jesus de Soares, who options available to them on the fundamental issues. They will then need time to consider and was then a representative of the East Timor debate so that they are able to form opinions, Jurists Association (he would later chair the time to hold discussions in order to seek con- systemization and harmonization commit- sensus where opinions are divided, and finally tee of the constituent assembly), appeared time to officially record their views. None of this before the NC and pleaded for an extended can happen in three months. time frame for consultation. He stated: “Isn’t The proposed timeframe being pushed by UNTAET and some East Timorese leaders this a process for us to teach the people of would only allow consultation on the consti- the importance of the constitution for the tutional process to take place over a period of 41 country?” When one Fretilin member of approximately three months due to the rush to the NC characterized the proposal as politi- hold the election on the 30th of August. This is cal maneuvering, an angry exchange ensued, forgetting that the very purpose of the election is to establish a Constituent Assembly that will in which the ever-deepening tensions be- draft the Constitution. The Constituent Assem- tween Gusmão and the Fretilin party were bly will not be in a position to carry out any apparent. The author of the proposed regu- further consultation on the Constitution with lation defended his submission, arguing that the East Timorese people. It will be under enor- democracy entails more than elections, and mous pressure to deliver the document that will explained that he had submitted the proposal declare the independence of East Timor. The 42 Constituent Assembly will have 90 days within to empower people, not parties. which to prepare and adopt the Constitution. During the debates over the issue, the All the legitimate constitutional processes NGO Forum submitted a letter to the Se- that have taken place in recent years were car- ©curity Copyright Council stating its case. Endorsed by bythe riedEndowment out over a period of three to four years. of twenty-eight NGOs, the letter stated: The consultation process for the South African Constitution lasted over three years. A three- theA Constitution United is a complex documentStates em- Institutemonth process would rob the of East Timorese Peace of bodying fundamental choices about the type their right to contribute to the future of their of country an independent East Timor will be. country and it will alienate them from the very This Constitution has to be a living document, document that should voice their aspirations.43 which reflects how the East Timorese as a peo- ple see themselves, relate to each other, and fi- Although the pleas of civil society were nally, after many centuries, govern themselves. compelling, the proposed regulation was ul- So, how are the East Timorese people to timately defeated. Gusmão resigned as NC make those fundamental decisions? By ensuring president because Fretilin refused to accept that a legitimate constitutional process estab- lished. [sic] the regulation, which would have ensured To achieve this legitimacy, we need to estab- that the process incorporate public consulta- lish a process that will provide the East Timorese tion. He complained to UNTAET that the people with a real opportunity to have their NC no longer reflected the aspirations of the views on the key issues reflected in the draft- people. Framing the State in Times of Transition 261

Civic Education and Consultation Prior sions’ work was undertaken between June 18 to the Constituent Assembly and July 14, 2001, with the active support of 46 The debate made it clear that there was the Political Affairs Department. Groups ­demand for popular consultation, and of five commissioners conducted consulta- UNTAET felt constrained to respond. It tions in the districts and groups of three held soon issued Directive 2001/13, which estab- sessions in the subdistricts. The commis- lished thirteen constitutional commissions sions held 205 open hearings throughout the 47 to engage in civic education and conduct country, which 38,000 people attended. The popular consultations in East Timor’s thir- populace responded enthusiastically; a single teen districts.44 The key differences between hearing would sometimes bring as many as this approach and that advocated by civil- 1,000 people. At each hearing, the commis- society representatives and others was that sioners presented the public with basic infor- these commissions did not have a mandate mation on a number of constitutional issues, to prepare a draft of the constitution and such as systems of government, official lan- they would receive heavy guidance from guages, electoral systems, national symbols UNTAET. The UNTAET directive also did (the flag and anthem), defense and security, not address the concerns of civil society and the economy, the legal system, nationality, Gusmão (after he reversed his position) that religion, health, the environment, human there be adequate time to first educate the rights, education, customary law, gender, and people on constitutional issues before con- amendment of the constitution. Sometimes sulting them. In addition, one of the impor- information on all of these topics would be tant elements of a consultation process is that conveyed in a single day. The civic education those preparing the draft of the constitution and popular consultation were conflated in a are able to travel throughout the country and single process that sometimes occurred in a hear the voices and concerns directly from single day. After a presentation on the issues, citizens. This process has been very - trans the commissioners would consult those pres- formative for the constitutional drafters and ent about their views on these subjects. helps set a precedent for law makers consult- This consultation process was not- pre © Copyrighting the people. by the Endowmentceded by a separate, well-developed of program Nonetheless, the transitional administra- of civic education designed to ensure the tor, , announced the public’s understanding of the role of a con- theprocess, United stating: States Institutestitution, how the constitution of Peace would be pre- A national civic education framework has been pared, and the role of the public. Given that developed in close consultation with major civil so few attending understood the above, they society groups. . . . This framework provides for largely spoke about issues that affected their widespread civic education through training of daily lives. trainers, mass information, and multiple civil society initiatives, including -level discus- In accordance with the directive’s terms, sion and other interactive activities. The main a rapporteur recorded the results of the ses- themes—the basic principles of a stable democ- sions, which later formed the basis of thirteen racy, constitutional issues, and voter education— reports, one for each district. No formal pro- will provide the foundation for an informed cedure or questionnaire was used to ensure public engagement in the process.45 an accurate recording of the views; the public UNTAET appointed seventy-seven com- had to rely solely on the rapporteur for this missioners under the directive. The commis- purpose. This was problematic because the 262 Louis Aucoin and Michele Brandt

rapporteurs had received minimal training as Feto Timor Loro Sae Timorese Women’s to undertake such an important task. Network (Women’s Network) conducted In the resulting reports, it was recorded consultations and provided reports, and in that a clear majority of the participants in the case of the Women’s Network, it pro- the consultations had expressed a preference vided a charter for the constituent assembly for either a presidential or a semipresidential to consider. system of government. Those participants Critics of the UNTAET consultation pro- wanted a strong president who would act as cess expressed the view that the process was commander in chief of the armed forces and ineffective, in part, because it 1) attempted direct the country’s foreign policy. It was clear to conduct civic education and popular con- that they envisaged Gusmão in this role. They sultation at the same time and too quickly also expressed a preference for a proportional (during a one-month period), 2) was not electoral system, although some opted for a conducted by an independent commission mixed proportional/majority system. Partici- or elected assembly of Timorese that was pants demonstrated a good understanding of tasked with preparing a draft constitution human rights norms and strongly advocated and therefore lacked national ownership, their into the constitution. credibility, and the important purpose of They also insisted that amending the consti- connecting the drafters to the people, 3) was tution should require some form of popular viewed as foreign influenced, and 4) did not consultation, such as a referendum. have a well prepared and cohesive system for As noted, the responses related very much gathering, collating, and analyzing the views to the concerns of the everyday lives of the of the public. people. Participants were very concerned In the end, it was clear that the process about preserving customary cultural tradi- UNTAET designed in response to the de- tions, especially those relating to marriage mand for popular consultation was a far cry and . They wanted to preserve and from the civil-society proposal offered dur- reform their dowry practices and sought to ing the debates, which was based on partici- abolish polygamy. They wanted to regulate patory processes that had already occurred in gambling and cock fighting. They wanted the places they had learned about, such as South ©government’s Copyright assistance in providing by hous the- Africa, Endowment , and Eritrea. of ing, clean water, health facilities, education, Unlike these processes whereby the con­ and farm equipment. They thought that the stitutional drafters had committed to an ex- constitutionthe United should protect people’sStates rights tensive Institute process of public of participation Peace and with respect to land and they wanted mea- ownership by the people of their new consti- sures to protect against . They tution, neither Fretilin nor the United Nations also wanted measures to prevent foreign had prioritized a participatory constitution- ownership of the country’s natural resources, making exercise. Only one month was de- mentioning gas and oil in particular. Finally, voted to civic education and popular consul- they thought the constitution should require tation, and the two activities were conflated. reparations from Portugal and Indonesia for De Mello presented the thirteen reports the destruction and abuse that occurred dur- to the constituent assembly on its opening ing their respective periods of colonization day.48 Section 2.4 of UNTAET Regulation and occupation. 2001/2 provided that the “Constituent As- While UNTAET engaged in its consul- sembly should give due consideration to any tation process, civil society held its own in- duly constituted Constitutional Commission dependent consultations with the public as or Commissions.” Nonetheless, the constitu- well. The human rights community as well ent assembly, as a whole, ignored the reports, Framing the State in Times of Transition 263

which were viewed as an UNTAET product. toring group called Assembly Watch, which, Constituent assembly members stated pub- together with other members of civil soci- licly during the discussions in the assembly ety, journalists, and some assembly mem- that they had never opened the report for bers, pressed the president of the assembly this reason.49 However, the independent to be publicly forthcoming with the draft. reports from the human rights community After much discussion within the assembly were read by some of the members. about whether members should gather and When the four political parties submit- debate public comments to use as the ba- ted draft constitutions to the assembly’s sis for further revisions and amendments, systemization and harmonization commit- a decision was finally made to leave open tee at the beginning of the process, it was this possibility. Members then decided that clear that they, too, had ignored the results a popular consultation focused on the draft of UNTAET’s popular consultation.50 constitution would be held in the last week in February. During a weekly press conference in Civil Society Pressure for the Constituent mid-February held by assembly leadership, Assembly to Consult with the Public Arlindo Marçal, vice president of the assem- Throughout the assembly’s mandate, its bly, told journalists that the main task of the members rarely traveled to the districts members was to “listen to the people.” He to inform the public about what was hap- also explained how the views of the public pening, even though some were selected to would be considered during the consulta- represent districts. The U.S.-based National tions, which were set to begin on February Democratic Institute for International Af- 25. In his view, if a certain issue was raised fairs (NDI), through its Civic Forum Pro- in all districts, then it would certainly be dis- gram, established groups in each district that cussed in the assembly plenary, but if only discussed the draft constitution and repeat- one person raised it, then it would not be edly attempted to set up meetings with as- considered. sembly members to have them brief their Not all the members agreed with Marçal’s constituencies. Members were rarely respon- point of view. On February 13, 2002, the as- © Copyrightsive to these requests. In part, by the fast thepace of Endowmentsembly members discussed the methodology of the process allowed them little time to travel for the public consultations. The proposed and meet with the people. Also, because the plan was to release copies of the draft con- thelegal frameworkUnited for the constitution-makingStates Institutestitution at least one ofweek inPeace advance of the process did not stress consultations with the meetings, conduct public consultations for public as an important element of creating six days, and then return to the capital to the new constitution, they were not a priority write up the results. The SHC would analyze for many assembly members. Some members the reports and consolidate them into one expressed the view that because they knew document. the views of their constituencies, there was The one-week public consultation pro- no need for popular consultation. They felt cess was held from February 25 to March that public participation was sufficiently as- 1, 2002, when thirteen groups of assembly sured through the electoral process. members traveled to each district to gather Nevertheless, pressure developed for the the views of the people. Thousands of cop- constituent assembly to share a draft con- ies of the draft constitution and a magazine stitution with the public and engage in a summarizing the drafting process and the consultation process of its own. The Asia main articles of the constitution were widely Foundation supported an assembly moni- distributed and produced in four . 264 Louis Aucoin and Michele Brandt

However, because the process was rushed, The SHC then met with each of the thirteen the documents were often received the same consultation teams and came up with pro- day as the consultations or not at all. Also, posed recommendations for amendments, to because of the ad hoc approach to consulta- which all the political parties had to agree. tions, there was no plan to ensure that the 60 This meant that only carefully selected views percent of the population who were illiter- would come before the assembly. The pro- ate could participate. Some districts received posals were then to be considered in the ple- copies of the draft constitution only in Por- nary and voted upon. On March 15, 2002, tuguese. Because the overwhelming majority the SHC provided its provisional report to of East Timorese citizens under the age of the assembly president. forty do not read Portuguese, this oversight In the plenary debate on the SHC re- excluded many youth from participating in port, some political parties complained that the consultations. the report did not reflect the aspirations of Asia Foundation personnel observed the people. The president explained that the many consultations around the country and report was drafted after discussion with all the foundation supported Assembly Watch parties and was an attempt at consensus and to travel to all thirteen districts and report negotiation. Although there was some feel- on the proceedings. It was widely reported ing that not all views were represented, the that women were rarely seen with copies of SHC did facilitate consensus, as eighty-two the constitution, and at some of the consul- assembly members approved the provisional tations, they were simply not present. At one report. consultation process in the district of Lau- However, it was also evident that sensi- tem, in the of the country, the con- tive issues raised by the public in nearly every sultation was held on market day when the district were negotiated behind closed doors women were not available to attend. Again, and not raised in the plenary. Eight of the because of the rushed planning for the pro- districts proposed that Tetum be the official cess, an effective gender strategy was not of East Timor and Portuguese be considered and so the largest constituency an official language for only a limited period was largely sidelined. of time. Because of Fretilin’s strong position ©Because Copyright distribution of the draft by consti the- on usingEndowment Portuguese as an official language, of tution and magazine was so tardy, some of the views of many of the youth, who gener- the assembly consultation teams decided to ally do not speak Portuguese, did not get an explainthe the United draft. This could haveStates been use- airing Institute in the plenary. of Peace ful to promote greater participation, but it Based upon a review of the changes made left very little time for the public to provide to the draft constitution after the public con- comments. Some participants became bored sultation process and comments by interna- and went home; others felt cheated out of tional experts, it is clear that the SHC revised their opportunity to have a say. the draft based more on comments from UN officials, experts in the technical secretariat, and the Asia Foundation consultants than Selective Consideration of the Views of the Public on the views of the public. On March 8, 2002, the president of the as- sembly, Lú-Olo, officially submitted the reports on the public consultations to the The Role of International Law SHC. The reports summarized the main There is no indication that the protagonists, recommendations on the draft constitution. national or international, of the constitution- Framing the State in Times of Transition 265

making process in East Timor felt bound by tion; rebuild infrastructure and sustainable international norms relating to the process. institutions; and establish the rule of law. The They did, however, devote considerable at- immensity of the tasks that had to be un- tention to the role of international law in dertaken to begin the reconstruction process East Timor’s legal system. After careful con- often appeared insurmountable. sideration of the subject, they decided to in- In the face of daunting challenges and corporate the international norms contained the fact that there was no blueprint for how in international agreements to which East to rebuild a nation, UNTAET responded Timor is a party,51 thus opting for the mo- with robust efforts and invested significant nist approach to the subject, in keeping with resources. UNTAET’s leadership was will- many continental constitutions.52 ing to be flexible as the mission evolved, and Customary international law was not so it often rethought strategies. This was par- incorporated, and the approach taken with ticularly true regarding the devolvement of respect to these norms creates some ambigu- power to the East Timorese. The map ity. Section 9 of the constitution provides that for the political transition process emerged “the legal system of East Timor shall adopt by trial and error and with some creativity. the general or customary principles of inter- In the early days of the mission, the tran- national law.” It does not make them superior sitional administrator ruled with the advice to domestic law, however, thus leaving the of a fifteen-member National Consultative question of how conflicts between custom- Council, but later determined that the East ary international norms and domestic law Timorese should take more political respon- might be resolved somewhat ambiguous. sibility in decisionmaking and policymaking. There is no doubt that the human rights It established a mixed East Timorese and provisions of the constitution have been in- international cabinet, along with the thirty- spired by international law, as all interna- six-member NC, which served as a quasi- tionally recognized civil and political rights legislature. The overriding policy was to de- and many of the economic, social, and cul- volve more power as independence neared, tural rights have been included. In addition, and accordingly, a fully Timorese council of Section 23 provides that all human rights ministers governed the day-to-day admin- © Copyrightembodied in the constitution by shall bethe inter- Endowmentistration of East Timor following of the con- preted in light of the Universal Declaration stituent assembly elections. of Human Rights. UNTAET’s determinative role, and in the United States Instituteparticular that of theof Department Peace of Po- litical Affairs, in the development of the le- Role of the International Community gal framework for establishing the constitu- ent assembly and constitutional commissions The Role of the United Nations has been addressed above. However, during in the Constitution-Making Process the drafting of the constitution, UNTAET When UNTAET was established in Oc- adopted an overtly hands-off policy, to en- tober 1999, it was faced with an enormous sure that the constituent assembly did not challenge. Because of Indonesia’s scorched- view the United Nations as interfering in earth policy and the inevitable loss of In- the creation of the independence constitu- donesian civil servants who had largely run tion and to promote a homegrown constitu- East Timor’s government, UNTAET, with tion. UNTAET’s official distancing from the only a few staff in place, had to reinstate ba- process during the actual drafting was wise. sic services, such as and educa- Although there were accusations from the 266 Louis Aucoin and Michele Brandt

public that the final constitution was more what most East Timorese leaders outside of Portuguese than Timorese, no one saw it as Fretilin were calling for, and which would having been prescribed by UNTAET. have led to, first, the drafting of the constitu- The transitional administrator did ensure, tion by an independent and diverse body of however, that the assembly had the necessary East Timorese, including professionals; sec- material and human resources to complete ond, a constituent assembly that would have its task. The office oversaw the budgeting been more representative of the diversity and funding for the process and provided of the nation; and third, space for the East translation services, one technical adviser, Timorese people to participate and feel more and other UNTAET staff to assist with the ownership of the constitution as a document administration of the secretariat. This sup- that reflected the aspirations of the people port was crucial to the success of the draft- as a whole and not largely Fretilin’s political ing process. For example, the constituent aspirations. Instead, the Department of Po- assembly had a newly refurbished assembly litical Affairs pushed for a process that led to hall with a modern speaker system in place the dominance of the process by Fretilin and from the first day of their sitting. Although precluded genuine popular participation. the Australian government financially sup- ported this, UNTAET staff ensured that the resources needed to run the constituent Provision of International Technical Advisers assembly and the secretariat were provided, The secretariat coordinated international and including the provision of computers, paper, local technical advice and support to the con- cars, and support staff. stituent assembly, establishing a technical Some of the members could not have staff with five foreign parliamentary experts followed the discussion without the benefit to assist with advice on rules and procedures, of the simultaneous translation in the four legal drafting, and substantive issues. Four working languages of the constituent as- of these advisers were Portuguese and one sembly, which was supported by UNTAET was Canadian. None of them had experience and the Asia Foundation. UNTAET also in constitution making, but they had crucial facilitated the public consultation process in experience in parliament and parliamentary ©February Copyright by photocopying copies ofby the draft the procedures; Endowment previous experience supporting of constitution and providing transportation the NC, East Timor’s quasi-legislature; and and security. It is a common assumption that four of them could assist with drafting provi- athe constitution-making United process Statesin any coun- sions Institute in Portuguese. These of advisers Peace were pro- try would occupy a preeminent position in vided by a variety of sources: UNTAET, the the nation-building process. However, in a Portuguese Parliament, the United Nations postconflict setting, in which many nation- Development Programme (UNDP), and the building tasks compete for attention, crucial Inter-Parliamentary Union (IPU). During funding or material support can be over- the first week of the assembly’s deliberations, looked or delayed because of a lack of timely UNDP and the IPU jointly organized a planning. seminar to provide an overview of compara- Despite the positive aspects of UNTAET’s tive constitutional processes and content. role, however, UNTAET was responsible An Asia Foundation (TAF) program also for a significant failure. The mission should provided technical support to the process. have supported a legislative framework for a TAF had a full-time program manager and constitution-making process that followed resident adviser and local program officer to Framing the State in Times of Transition 267

assist the process. The TAF program was ini- develop it with them, and TAF remained tiated through a one-week consultation pro- flexible in meeting the CA’s needs. TAF pro- cess to identify the most critical needs and vided nine technical constitutional advisers, determine the most suitable forms of techni- both generalists and specialists (e.g., a land cal assistance during the constitutional draft- and property specialist), during twelve sepa- ing process. TAF met with the president and rate visits in the seven-month constitutional vice presidents of the constituent assembly, drafting program. TAF experts provided political party leaders in the assembly, the constitutional advice directly to the commit- secretariat, members of UNTAET (includ- tees and the plenary, held weekly meetings ing the transitional administrator), the min- with all political parties in the assembly who ister of foreign affairs, and key donors, such requested advice, and produced over a dozen as UNDP. During these discussions, TAF options papers on constitutional issues, such emphasized that its technical assistance was as customary law, international law, indepen- to enhance the assembly’s capacity to fulfill its dence of the judiciary, transitional provisions, all-important role of drafting the constitution human rights, and public participation. Some in the most inclusive and transparent way pos- of these papers were discussed during lunch- sible; responsibility for preparing, adopting, time dialogues on specific constitutional is- and implementing the constitution remained sues. TAF also supported a seminar for mem- solely with the people and the assembly. bers on measures to increase public dialogue Many of the consultative meetings with and plan the public consultation process for assembly members were at least two hours the draft constitution. Lastly, it provided sub- long because before members could articu- stantive revisions or corrections to the draft late what types of assistance they wanted, constitution, some of which were incorpo- they had many questions about how the rated into the final draft by the assembly. process in general would or should proceed. The president of the assembly specifically -re quested that TAF organize a workshop on Objectives of Technical Assistance the issue of public consultations. Some of To provide effective technical assistance in the members also requested an immediate a constitution-making process, all advisers © Copyrightoptions paper on the constitution-making by the Endowmentmust understand their role and workof coop - exercise, which could assist with defining the eratively to provide the types and frequency goals and strategy of the process. Follow- of technical assistance that are needed to theing thisUnited one-week consultation States period, and Instituteproduce a homegrown of constitution. Peace The level based on members’ specific requests and sug- of technical assistance needed varies, particu- gestions, TAF provided the members with a larly in a postconflict context in which there paper on suggested methods of assistance to may be few nationals with legal experience, the assembly. The assembly welcomed these as was the case in East Timor; the Timorese methods and, throughout the process, con- were rarely allowed to practice law or par- tinued to make specific requests to the TAF ticipate in governance during the Indonesian resident adviser as additional needs arose, occupation. The technical advice should- al such as the provision of translators. ways promote local ownership over the con- The consultation process was very- im tent and process of the constitution-making portant in gaining assembly members’ trust. exercise. TAF’s philosophy was not to impose a pro- In East Timor, most assembly members gram of assistance on the assembly but to welcomed the technical assistance, and as 268 Louis Aucoin and Michele Brandt

they gained trust that the advisers to the simple terms; 50,000 copies of this maga- process were respectful of the members’ zine were distributed. NDI also developed roles, the requests for advice and discussions easy-to-understand descriptions of the draft increased. In-country advisers from both the constitution in Tetum and distributed these technical secretariat and TAF were available through its civic forum program. All of these to all members and parties. Although some activities contributed to a greater emphasis parties had technical advisers, the on public participation in the process. In the advisers openly assisting the process did not end, the technical assistance relating to the favor one party over another. process served to increase the receptivity to Close coordination between the techni- public participation of many members of the cal secretariat advisers and TAF advisers assembly who initially resisted it. However, contributed to providing effective technical this could not overcome a rushed process or advice. Some of the advisers met regularly lead to the desired objective of public partic- to share information and discuss options for ipation, which is to promote ownership and the constitution. Comparative constitutional legitimacy of the constitution. experts learned more about the specifics of the East Timorese context, and Portuguese legal experts learned more about innovative Conclusion constitutional provisions and procedures The process of developing, drafting, and from other . Technical advisers adopting a constitution is beyond a doubt a commented on the draft constitution, as critical phase in any political transition, re- did representatives of international organi- quiring careful planning to ensure that it is zations, including Mary Robinson, the UN done in a representative, inclusive, participa- high commissioner for human rights, and tory, transparent, and nationally owned and UNTAET’s transitional administrator. The led manner. This is especially true in a post- assembly’s harmonization committee largely conflict context. The process of how the con- welcomed the input and revised portions of stitution is prepared is as important as the the draft based on advice from foreign com- content of the resulting constitution because mentators. Nearly all of the advisers raised it can lead to a more legitimate constitution, ©the problemCopyright in the draft constitution by the of as well Endowment as a social contract reflecting the ofaspi- rights being afforded only to citizens. The rations of the people. In East Timor, despite appropriate provisions were revised to adhere the clear demand from diverse leaders in civil tothe international United human rights standards,States thus society Institute for public participation of andPeace a repre- affording rights protection to all persons in sentative and inclusive process, pressure from East Timor. the international community and a few elite The technical advice and support affected actors who wanted to take power quickly not only the substance, but also the process. resulted in a process that focused on hastily Internews, TAF, and staff from UNTAET producing a constitution and not on estab- worked together to help the secretariat pro- lishing democratic practices and precedents. duce materials for the public consultation Although each constitution-making pro- process. UNTAET provided a graphic artist cess is unique and lessons learned from one and Internews oversaw the publishing pro- process are not always transferable to an- cess. A technical adviser as well as a local ad- other, there are a few key lessons from the viser from TAF assisted in the development East Timorese process that may prove useful of a constitutional magazine to explain the to future constitution makers, other national draft constitution to the people in clear and actors, and those within the international Framing the State in Times of Transition 269

community who support and contribute to to have participated meaningfully in a na- the process. This conclusion does not sum- tionwide and inclusive civic education pro- marize all lessons learned and good or poor cess would have served several purposes. It practices highlighted throughout the paper, would have facilitated an understanding of but focuses on a few key flaws that should be the process by which the new constitution avoided in future processes. was to be made, of the role of a constitu- tion in a society, of key constitutional issues, The Legal Framework and of democratic practices and principles. It also would have allowed citizens to reflect The legal framework in East Timor was upon what they wanted in the constitu- skeletal. Skeletal frameworks can be useful tion. The one-month UNTAET-led civic- when there is not broad agreement by key education and -consultation process was not stakeholders on the objectives of the process, sufficient; it was mere window dressing for when key actors are still outside of peace what these types of civic-education compo­ processes, or where the situation remains nents in a constitution-making process typi- volatile. However, East Timor was a fairly cally are designed to achieve. It conflated stable society at the time and a more detailed civic education and consultation, sometimes framework would have better served the pro- in a single day, and this did not provide the cess. The framework in East Timor created a time needed to achieve any of the purposes very rushed timetable (ninety days to draft, civil society had been requesting through- debate, and adopt the constitution), did not out the consultations on the structure of the mandate public participation in the process, process. and created a structure for the process that Moreover, the structure of the UNTAET- precluded a broadly representative group of managed public consultation process lacked constitution makers. legitimacy and impact because it was seen as The legal framework should be carefully an UNTAET process rather than a nation- prepared to promote the principles and val- ally owned and led campaign. The constitu- ues discussed above. It should allow sufficient tion makers themselves were not required time to plan and implement a participatory to travel to all areas of the country and hear process that includes nationwide civic edu- firsthand from the public about their- con © Copyrightcation before, during, and after by the adoptionthe Endowment of cerns and aspirations. This was a major flaw of the constitution. This should be combined in the process. The constitution makers also with a genuine and inclusive consultation the United States Institutehad little contact withof the Peace public, outside process that may also occur during several of some civil-society groups that presented different phases, including before and after papers at committee hearings. Consultation the draft of the constitution is produced. It processes are often very transformative for should establish mechanisms for electing constitution makers because they hear con- or selecting a group of constitution makers cerns from everyday people, and often this that does not merely represent elite politi- leads to more focus on issues that may not cal interests (which are important) but also have received attention otherwise. It also sets includes broader societal interests. up an important democratic precedent for representative democratic practices, whereby Public Participation representatives meet with their constituents For the East Timorese, who had largely and are accountable. In East Timor, the con- been excluded from the political life of the stitution makers, the delegates of the con- country during the Indonesian occupation, stituent assembly, were simply handed the 270 Louis Aucoin and Michele Brandt

reports of the constitutional commissions, ing de facto power and capitalize on its own but members were skeptical of the meth- organizational strength and popular legiti- odology and the contents and rarely, if ever, macy as a resistance party, Fretilin put for- referred to the documents. The consulta- ward a constitution that limited presidential tions may have boasted tens of thousands of powers. Immediately preceding the presi- participants, but the consultations had little dential elections under UNTAET, Gusmão ­impact on the content of the constitution, expressed reluctance to run because, as he and the assembly was not required to con- explained to reporters, the only powers ac- sider the views or report back to the public corded the president under the draft consti- how the views were taken into account. tution were the powers “to eat and sleep.” In After the draft was prepared, both the the end, Gusmão ran for the office nonethe- media and civil society demanded that the less and won as predicted. assembly engage the public in a meaning- In short, East Timor’s independence con- ful consultation process, and the leaders, stitution reflects the political power that including the assembly’s president, felt com- Fretilin enjoyed as the preeminent political pelled to respond. However, it was too little, organization left in the wake of Indonesia’s too late. Few of the members of the public withdrawal. Thus, the constitution’s shape could read or learn about the contents of the was heavily influenced by Fretilin’s signifi- draft constitution before the consultations. cant popular support because of its primary Some members of the public did not get a role in the previous liberation struggle. chance to speak because a few consultation It may be that the split between Fretilin teams wanted to speak rather than to listen. and Gusmão was not widely recognized, and There was no methodology for the those who voted for Fretilin did not expect process, and even when views were gathered that these votes would assist Fretilin to limit in the process, it was unclear what weight to Gusmão’s power in his expected role as the give those views. In the end, the process was future president. That most people who voted rushed and few of the views were debated for Fretilin also voted for Gusmão for presi- and discussed by the assembly. It became dent and that the consultation process raised readily apparent that only the views that did public aspirations for a strong president in- ©not requireCopyright any kind of compromise by from the dicate Endowment some of the contradictions in the ofpro- Fretilin would be incorporated. cess. Using an elected constituent assembly The lesson learned from the East Timor ensured that the constitution reflected the processthe is United that public participation States is not interests Institute of the most powerful of political Peace party, merely an exercise in public relations. It but the lack of a competing political orga- serves very important purposes and carrying nization that reflected the public’s desire for it out takes time, adequate resources, and di- Gusmão as a strong president meant that rect engagement by the constitution makers. the constitution-making system could not It should be carried out at several phases of balance or lead to negotiations between the the process. main power bases in the country. Because Fretilin dominated the elected constituent assembly, and the assembly was Democratic Representation tasked with drafting, debating, and adopting As noted in this chapter, the political tran- the constitution, the constitution largely re- sition period witnessed ever-deepening ten- flected the views of this single political party sions between Fretilin and Gusmão. In a and was not seen as a consensus-based con- move designed to check Gusmão’s burgeon- stitution. Because the process was rushed, Framing the State in Times of Transition 271

other stakeholders had little time to push for post-conflict constitution-making exercises. more inclusion in the process or to even pre- Groups that have been marginalized or did pare to do so. not participate in the conflict may be- ex Fretilin leaders were not inclined to con- cluded from participating. While elected sult the public on the draft because they felt bodies do in some cases contribute to legiti- they had garnered such a high percentage of macy, other mechanisms also can be used to the votes during the elections that they had ensure that the constitution is a product of a mandate to represent the people and could consensus building and that the concerns of make decisions on the constitution without the diversity of the nation are represented. public consultation. Indeed, they arrived at the constituent assembly with a draft in hand, modeled after the Portuguese consti- Impact of the Process on Conflict in East Timor tution, and the final text did not stray far With the passage of time, some of the events from this initial draft. Although the public that have unfolded reflect the effects of the may not have been initially aware of the ori- failings of the constitution-making process. gins of the initial draft, the foreign flavor of The violence of 200654 and the divide be- the constitution is one of the rallying points tween the president and prime minister have of its critics, which has detracted from the shown that the constitution has not facili- constitution’s legitimacy.53 tated a unified sense of national identity or Certain UN actors and political elites provided the means for effective and non- argued that a constitution should only be violent resolution of political conflict. The prepared by a democratically elected body. weaknesses of the process and the charter However, it is common for drafts of a consti- that resulted from it have led many to call tution to be prepared by a group of selected for constitutional reform; since the adoption members, who then carry out broad consul- of the constitution, the public has grown in- tations with the public and have an elected creasingly critical of Fretilin’s role in drafting body debate and adopt the text. This was the it and of the flaws in the constitution itself. process civil society had demanded but did This has tarnished both Fretilin and Gusmão. not get. As a result, the failings of the constitution © CopyrightIn a post-conflict context, by where thenascent Endowmenthave emerged as a favorite rallying of point for political parties are weak, rarely put forward whatever political forces are trying to gain fully articulated constitutional platforms, and favor among the population, and the charter thedo not United have strong representational States bases for Instituteappears to be sorely lackingof Peacein legitimacy. their positions, certain parties or individuals Nevertheless, even though the constitu- thrive based on their past roles during the tion called for a review process in 2008, the conflict and not what they claim to achieve moment came and went with a great deal of in the future. Elections in and of themselves rhetoric and debate but no reform. Mean- may not necessarily be a sufficient conduit while, the institutions of government have for the expression of the people’s constitu- evolved much more in response to political tional aspirations. These aspirations, how- realities than to the strictures of the consti- ever, must inform not just the choices about tution. The country has seen two presidencies who should govern for one term but the since the adoption of the constitution, that of blueprint for society itself. Hence, a strictly Gusmão and that of Jose Ramos Horta, and democratic electoral model dependent on many critics assert that each of them have representation through the ballot is usually exercised powers above and beyond those insufficient to capture public preferences in which the constitution has granted to them. 272 Louis Aucoin and Michele Brandt

These observations underscore the- dan 2. U.S. embassy cables have shown that “Su- gers of a failed constitution-making process harto was given the green light” prior to the inva- and clarify that that process was a missed sion. In fact, hours before the invasion, President Suharto had been entertaining President Gerald opportunity. Although the East Timorese Ford and at an rejoice that at long last, they have achieved official state visit in . Noam Chomsky, “In- the freedom and independence that they had troduction,” in Matthew Jardine, East Timor: Geno- struggled for, the creation of the constitution cide in Paradise (, MA: Odonian Press, as part of that process has failed to con- 1995), pp. 6, 10. tribute to the peace and stability that they 3. East Timor ranks among the poorest countries in the world, with an annual per capita hoped for. As a result, the future is marked GDP of an estimated $800 in 2005. CIA World with uncertainty on many levels, and many Factbook, available at www.cia.gov/cia/publications/ questions remain unanswered. Will those factbook/geos/tt.html#Econ. who serve as president and prime minister 4. One of the best-known histories of this eventually conform to the demands of the period is James Dunn, A People Betrayed (San Jose, constitution, or will the powers they exercise CA: The Jacaranda Press, 1983). continue to be more likely determined by 5. Ian Martin, Self Determination in East the politics of the moment? Will new con- Timor: The United Nations, the Ballot, and Interna- tional Intervention (London: Lynne Rienner Pub- flicts emerge that will be resolved by force lishers, 2001), p. 15. rather than by law? Will there be the mo- 6. Martin, Self Determination, p. 15. mentum and political will required to clearly 7. Carey and Bentley, East Timor at the Cross- identify the weaknesses of the constitution , p. 33. and address them, or will the issue of con- 8. Carey and Bentley, East Timor at the Cross- stitutional reform continue to be a pawn in roads, p. 33. the game of politics? Will a constitutional 9. Martin, Self Determination, p. 16. reform process be developed that leads all 10. Irena Cristalis, Bitter Dawn: East Timor, a key stakeholders and society to feel that the People’s Story (London: Zed Books, 2002), p. 286. constitution belongs to them and encourages 11. Prior to 1978, Fretilin had been able to them to defend it? These questions remain maintain control over certain areas of the territory. It lost that control when it incurred devastating unanswered for the present, but if the project losses in 1978, but it managed to regroup by 1981. ©of constitutional Copyright reform moves forward, by thethe See CareyEndowment and Bentley, East Timor at the Crossroads, of missed opportunity of 2002 will be a stark p. 36. reminder of the need to afford the time to 12. Cristalis, Bitter Dawn, p. xi. ensurethe a process United that is inclusive, States transparent, Institute13. See, e.g., Carey and Bentley,of EastPeace Timor at representative, and participatory, so that the the Crossroads, p. 38. constitution as amended will benefit from 14. Carey and Bentley, East Timor at the Cross- consensus building and from the legitimacy roads, p. 8. it currently lacks. Perhaps then the people of 15. ETAN/US, “The Santa Cruz Massacre: East Timor will finally have a government November 12, 1991,” East Timor and Indone- sia Action Network, http://etan.org/timor/Snta- that offers them the peace and stability they CRUZ.htm (accessed April 16, 2009). have known too rarely. 16. Although the United Nations had been brokering talks between Portugal and Indonesia since 1983, little progress was made in the talks Notes prior to 1998. Moreen Dee and Michael Smith, 1. and Carter Bentley, eds., Peacekeeping in East Timor: The Path to Independence East Timor at the Crossroads: The Forging of a Nation (London: Lynne Rienner Publishers, 2003), p. 39. (Honolulu, HI: University of Press, 1995), 17. Dee and Smith, Peacekeeping in East Timor, pp. 3, 33. p. 43. Framing the State in Times of Transition 273

18. Cristalis, Bitter Dawn, p. 288. available at www.etan.org/et2002a/march/24–31/ 19. Dee and Smith, Peacekeeping in East Timor, 22consti.htm (accessed on April 16, 2009). p. 18. 32. Constitution of the 20. United Nations Security Council Resolu- of East Timor, preamble. tion 1272 (1999), UN Doc S/RES/1272, para 8. 33. See “East Timor: Assembly Slates 20 . Dee and Smith, Peacekeeping in East Timor, 2002 for UN to Hand Over Sovereignty,” United p. 66; Cristalis, Bitter Dawn, p. 288. Nations UNTAET Report, www.un.org/peace/ 22. See generally, UNTAET Regulation etimor/news/01oct22.htm (, 2001). 2000/24, “On the Establishment of a National 34. Della-Giacoma, “Results Over Process.” Council,” July 14, 2000, available at www.un.org/ 35. These parties included the following: peace/etimor/untaetR/Reg2400E.pdf (accessed on Partido Democratica Cristao (PDC); Uniao Dem- April 16, 2009). ocrática Timorense (UDT); Partido Democratico 23. See generally, UNTAET Regulation (PD); Associaçao Popular Democratica Timorense 2000/23, “On the Establishment of the Cabinet (Apodeti); Frente Revolucionarea de Timor Leste of the Transitional Government of East Timor,” Independente (Fretilin); Klibur Oan Timor Asu- July 14, 2000, available at www.un.org/peace/etimor/ wain (Kota); Partido Republika Nacional Timor untaetR/Reg2300E.pdf (accessed on April 16, 2009). Leste (PARENTIL); Partido Nasionalista Timo- 24. Security Council Briefed by Sergio Vieira de rense (PNT); Partido Trabalhist Timorense (PTT); Mello, Special Representative of the Secretary General Partai Demokratik Maubere (PDM); Partido Social for East Timor, UN Doc SC/6850, April 27, 2000. Democratica (PSD); Partido Democratica-Cristao 25. “Reconstructing East Timor: Analysis of de Timor (UDC/PDC); Partido do Povo de Timor the Past and Perspectives for the Future Confer- (PPT); Partido Socialista de Timor (PST); Asso- ence,” Final Report (Tibar Document), Tibar, East ciaçao Social-Democratica Timorense (ASDT); and Timor, May 29–June 2, 2000, p. 23 (unpublished Partai Liberal (PL). paper on file with the authors). 36. See United Nations UNTAET Report, 26. Remarks by Peter Galbraith, Director, “Nearly 96% of East Timorese Registered in Ad- Office of Political, Constitutional and Electoral Af- vance of August Elections,” press release, June 22, fairs for UNTAET, at the Conference on Recon- 2001, available at www.un.org/peace/etimor/news/ structing East Timor: Analysis of the Past and Per- 01jun22.htm (accessed on April 16, 2009); see also spectives for the Future, May 29, 2000 (on file with United Nations UNTAET Report, “Following the authors). First-Ever Elections, East Timor Begins to Count Ballots: UN Mission,” press release, August 22, 27. Address by Sergio Vieira de Mello, Spe- 2001, available at www.un.org/peace/etimor/news/ © Copyrightcial Representative of the Secretary by General the and Endowment of 01aug31a.htm (accessed on April 16, 2009). Transitional Administrator, August 21, 2000, First CNRT Congress, Dili (on file with the authors). 37. As noted above, ASDT was the original name of the Fretilin party. However, during the the 28.United Militias Root Cause States of Problems for Institute of Peace UNTAET period, a new party bearing the same UNTAET and Indonesia in East Timor, Sergio Vieira name was constituted apparently in an attempt to de Mello, Special Representative of the Secretary signify a harkening back to the values espoused General to East Timor and Transitional Adminis- when the original Fretilin party bore the name. trator, UN DOC SC/6928, September 29, 2000. 38. Della-Giacoma, “Results Over Process,” 29. For a description of the major features of this regulation, see the section of this chapter on p. 13. democratic representation. 39. See Aniceto Gutierrez, “Proposed 30. Jim Della-Giacoma, “Results Over Pro- UNTAET Regulation,” 2001 (unpublished pro- cess, Analysis of the Creation of the East Timor posal on file with the authors). Constituent Assembly,” p. 12 (unpublished paper 40. The International Policy Institute, A Re- on file with the author). view of Peace Operations: A Case for Change (Lon- 31. See KITLV, Royal Institute don: King’s College, 2002). of Southeast Asian and Studies, “East 41. Della-Giacoma, “Results Over Process,” Timor: Constitution OK’d But Ramos Horta Crit- p. 13. ical of Dissenters,” press release, March 22, 2002, 42. Ibid., p. 13. 274 Louis Aucoin and Michele Brandt

43. East Timor NGO Forum, “Letter to 48. Della-Giacoma, “Results Over Process,” Members of United Nations Security Coun- p. 15. cil,” March 17, 2001, available at www.pcug.org. 49. Telephone interview with Aderito Jesus au~wildwood/01marushed.htm. de Soares, former chair of the systemization and 44. See UNTAET Directive 2001/13, avail- harmonization committee, fall 2002. able at www.eastimorlawjournal.org/UNTAET- 50. Telephone interview with Aderito Jesus Law/Directives/Index.html (accessed July 18, de Soares, former chair of the systemization and 2009). harmonization committee, fall 2002. 45. See “Strategy to Promote Public Partici- 51. Constitution of the Democratic Republic pation in the Constitutional Development Process,” of East Timor, sec. 9. Statement by Sergio Vieira de Mello, Special Rep- 52. Graham Nicholson, “Observations on the resentative of the Secretary General and Transi- East Timor Constitution,” Alternative Law Journal, tional Administrator, March 29, 2001. vol. 27, no. 5 (October 2002), p. 206. 46. See UNTAET: A Report of the National 53. Interview of , 2009, with Edward Constitutional Consultation in East Timor, June–July­ Rees of Peace Dividend, an NGO doing business in 2001, Constitutional Affairs Branch, Department East Timor since the adoption of the constitution. of Political Affairs and , p. 4. 54. See “East Timor Conflict,” available at 47. UNTAET: A Report of the National Consti- www.reliefweb.int/rw/rwb.nsf/db900sid/EKOI-6- tutional Consultation, p. 4. QS3AJ?OpenDocument (accessed July 18, 2009).

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