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East Timor's Constitutional Passage to Independence © Copyright by The 9 East Timor’s Constitutional Passage to Independence Louis Aucoin and Michele Brandt n a post-conflict environment, a con- • address and reflect the concerns and rights stitution-making process has great po- of women, minorities, key stakehold- tential to serve as a peacebuilding 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 East Timor 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 May 20, 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 island 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 always 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 (Fretilin) 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 colony.1 Very shortly constitution that largely reflected the desires thereafter, on December 7, 1975, Indonesian of one party rather than the aspirations of troops invaded East Timor in a move that the country 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 United Nations, 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 major powers in the world, 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 coalition, 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 Portugal, Nations General Assembly declaration in and a realigned coalition comprising UDT 1960 that the Timorese territories under and Apodeti, which favored integration with Portuguese control were “non-self governing” Indonesia. On November 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 Republic 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 course for the self-determination Indonesia justified its 1975 invasion as of its colonies and provided for a transitional an attempt to pacify the territory. 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 annexation was otherwise universally decessor to Fretilin, it advocated the recon- condemned by the international community, © Copyrightstruction of East Timorese bysociety theon the Endowmentin 1978, Australia became the onlyof coun - basis of indigenous customs and kinship try in the world to officially recognize it, a alliances.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 military 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
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