A.11 Timor-Leste [2002]

On August 30, 1999, the United Nations sponsored a national referendum in which 78.5 percent of the population voted for independence from Indonesia. Indonesian forces retaliated and destroyed much of Timor-Leste’s infrastructure, and the Indonesian authorities fled. In a governmental vacuum, the United Nations Transitional Administration in East Timor (UNTAET) was established, and it was given executive, legislative, and judicial authority. One of the key benchmarks for the process of transferring power from the United Nations to the Timor-Lesteese was the adoption of a new constitution; it came into force on May 20, 2002.

An UNTAET decree established a rushed timetable that did not mandate a process of civic education or public consultation. An eighty-eight-member elected constituent assembly was established to draft, debate, and adopt the constitution within a period of ninety days. (The drafting period was later extended by a further ninety days.) Civil society had strongly advocated for an independent constitutional commission to widely consult with the people and prepare a draft of the constitution that would then be debated and adopted by an elected body. This plan was not followed, and as a compromise UNTAET organized thirteen commissions to educate the public and obtain input on the constitution. The process was flawed. First, the constitution- makers were not required to consult with the public. Second, the process was rushed and so civic education and public consultation were conducted at the same time. The public had little time to reflect on the constitutional options or their aspirations for the constitution. Third, the views were not carefully gathered and analyzed. Fourth, the process was not nationally owned. It was launched by UNTAET under its direction, and when the reports were shared with the constituent assembly many of the members stated that they had not looked at them because they were not credible. (Brandt and Aucoin 2010)

The constituent assembly was dominated by a single political party, Fretilin. The constitution largely followed the draft constitution prepared by Fretilin beforehand. Because the constituent assembly was not representative, it did not facilitate a process of consensus-building. Few compromises were made with other parties or interest groups. Fretilin also understood that it had a mandate from the people to prepare the constitution and did not need to consult with the public. Because of pressure from civil society and the media, the constituent assembly eventually held a one-week public consultation process on the draft, but the planning for the process was poor. Again, the public had little time to read the draft, it was not always available in a language they understood, and their views were gathered in an ad hoc manner. The public consultation had little impact on the final content. Comments on the draft from international actors were more carefully considered.

The dominance of Fretilin in the constituent assembly and the lack of public participation weakened the legitimacy of the constitution. It was not viewed as a product of consensus- building and dialogue among the various stakeholders and the broader public. This, it has been observed, contributed to later conflicts and accompanying calls for a new constitution.