Abstract
The United Nations Transitional Administration in East Timor (UNTAET) was established by the UN Security Council on 25 October 1999 to administer the territory of East Timor towards independence in the wake of its violent separation from Indonesia. UNTAET largely fulfilled the elements of the security and governance mandate conferred on it by the Security Council, but this was not sufficient to create the conditions for lasting stability in the territory in the absence of a positive internal political settlement. In the process of constructing the machinery for the new state, UNTAET influenced the character of the political settlement that was taking shape across Timor’s elites and the wider society in unintended ways. To demonstrate this, this article considers three areas: the political space that opened up under UNTAET; the organization of the transitional government; and constitution-making for the future state of Timor-Leste. The article concludes that UNTAET misread the local context, leading it to pay insufficient attention to the complex political dynamic playing out around it and to the profound institutional consequences of its policy choices.
On 30 August 1999, the people of East Timor 1 were given the opportunity to vote on independence 2 after 24 years of Indonesian occupation, and the outcome was a convincing 78.5% in favour. The announcement of the result unleashed a systematic and vicious campaign of orchestrated violence by pro-Indonesian militias backed by local Indonesian military and police. In the space of a few weeks some 250,000 people – almost one-third of the population – were herded across the border into West Timor. Townspeople were stripped of their possessions, their houses were torched and around 70% of public infrastructure across the entire territory was destroyed. Public buildings and government records were burnt, and electricity, communication and water infrastructures were comprehensively wrecked.
The response of the international community was swift and resolute. On 15 September, the UN Security Council authorized the immediate deployment of a multinational force to restore peace and security in East Timor and facilitate humanitarian assistance pending the establishment of a UN peacekeeping operation. Six weeks later, the Security Council mandated the successor UN peacekeeping mission to stabilize and administer the territory of East Timor through to independence. The mission was named the UN Transitional Administration in East Timor (UNTAET).
UNTAET was hailed as an outstanding success at the time of Timor’s independence on 20 May 2002, a welcome reprieve for the reputation of UN peacekeeping after a succession of lacklustre or failed missions. The mission could cite an impressive catalogue of achievements on the humanitarian and security fronts, ranging from the restoration of security across the territory to the return and successful reintegration of over 200,000 displaced Timorese from West Timor. The mission could also claim that it had accomplished an unparalleled state-building process, creating the necessary political structures and government machinery for a new state literally from the ashes.
In the euphoria of independence, few (if any) in the international community anticipated the violence that would erupt in 2006, when the deep hostility between competing elite interests and between the country’s two senior political leaders was played out in the streets of the capital and regional towns and elements of the state’s security forces morphed into partisan enforcers for sectional political interests. Government buildings and a large number of homes were torched, 15% of the population was displaced and some 30 people were killed.
What went wrong in Timor-Leste? The answer would seem to lie, in part, in the character of the political settlement that took shape during UNTAET’s administration of the territory. Arguably, UNTAET built the wrong peace. Its focus was on the proximate causes of the conflict in East Timor: namely, its contested split from Indonesia and the immediate aftermath. Its priorities included the protection and return of a third of Timor’s population displaced across what had become an international border; the containment of hostile militia incursions from across the new border; and the punishment of those responsible for the violence of 1999. This was where its mandate directed it.
UNTAET did not engage closely with the deeper political history of Timor or the corrosive relationship between prominent leaders and their supporters, which was a legacy of the 24 years of armed struggle and political resistance to Indonesian rule. Consequently, a positive political settlement was not forged within East Timor during the life of UNTAET, and the institutions it nurtured deepened the fissures between Timorese elites as well as between elites and wider society.
To begin to understand why the political settlement evolved as it did, some clues can be found in the way that the UNTAET mandate took shape and, importantly, the standing of the Timorese resistance leadership in the process. The mandate had its roots in the political agreement signed on 5 May 1999 between Portugal, Indonesia and the UN, which set the terms for the proposed ‘popular consultation’ that would give the people of East Timor their chance to vote on independence. The standing of the three signatories was anchored in history. At the time of the Indonesian invasion of Timor in 1975, Portugal held Timor as a non-self-governing territory. It had committed to rapid decolonization the previous year, and within weeks several political parties had emerged in Timor. Their positions on Timor’s political future were sharply divergent, and in August 1975 one of the two major parties, the Portuguese Democratic Union (UDT), attempted to seize power by force. The rival Fretilin Party counterattacked, and the Portuguese administration withdrew in disarray from the territory. Fretilin emerged as the victor by early September and it declared independence on 28 November 1975.
Indonesia, purportedly acting at the behest of the parties that had been vanquished by Fretilin, invaded on 7 December 1975. Portugal immediately took Timor’s case to the UN Security Council, and continued thereafter to argue Timor’s claims for self-determination in annual debates on the ‘question of Timor’ in the UN General Assembly. In 1982, the General Assembly requested the Secretary-General initiate consultations with all directly concerned parties to achieve a comprehensive settlement. The Secretary-General interpreted this narrowly to mean only Portugal and Indonesia, excluding the resistance movement leadership, and thereby set in train a pattern of tripartite engagement that was maintained through to the agreement of 5 May 1999. 3
The terms of the agreement are instructive. Article 6 specifies that, should the people of East Timor reject the proposal for special autonomy (i.e. if they vote for independence), then ‘the Governments of Indonesia and Portugal and the Secretary-General shall agree on arrangements for a peaceful and orderly transfer of authority in East Timor to the United Nations’. To give effect to this transfer of authority, Portugal and Indonesia first had to withdraw their sovereign claims. On 19 October 1999, the Indonesian Parliament legislated to repeal its 1976 law annexing East Timor; the next day, Portugal advised the United Nations that it would relinquish its legal ties to East Timor upon the adoption of the Security Council resolution establishing UNTAET. 4 Five days later, the Security Council formally mandated the mission. The mandate was one of extraordinary breadth. The powers vested in the mission, to be exercised through the person of the UN Transitional Administrator, included all the classical powers of a state, albeit exercised as a trustee rather than as a sovereign. 5
The Timorese themselves were largely absent from the mandate. Although the Security Council resolution does reference them, their role is essentially passive, responding to the ‘the need for UNTAET to consult and cooperate closely with the East Timorese people’. No express provision was made to include the Timorese in executive decision-making or in the administration of those decisions. The Security Council’s implicit message was that the Timorese resistance movement should keep a low profile in the governing structures of the transitional state in deference to Indonesian sensibilities. 6
As well as exercising quasi-sovereign powers, UNTAET was different from all previous peacekeeping missions in another fundamental respect. In all other contexts, parties to the conflict remained inside the territorial borders of the state in which the mission was deployed, forcing the resolution of a political settlement to centre stage. In Timor, however, the perpetrators of the violence had withdrawn across a new international border, and were unlikely to return in numbers that would destabilize the state. Those left within the territorial borders shared a common political goal of moving rapidly towards the creation of an independent nation.
This situation induced two fundamental misunderstandings on the part of UNTAET. First, it mistook the absence of government as a political vacuum, and paid insufficient attention to the complex political dynamic playing out around it. Second, it mistook the shared goal of independence as signifying a broader consensus about the institutional design of the new state.
These misunderstandings allowed UNTAET to pursue building the machinery of government as an essentially technical exercise without reflecting on either the profound institutional consequences of the policy choices being made, or on which local interests they inadvertently favoured. There was little time for reflection given the accelerated countdown to independence demanded by both the Timorese leadership and the Security Council, albeit for different reasons. The pressure was on to deliver the benchmarks set out in the strategic plan for the transition to independence. It was the outputs that counted, rather than the thoroughness of consultation and analysis that produced them. Nevertheless, the process and the outcomes had considerable bearing on the political settlement in East Timor over this period.
To understand how the decisions taken by UNTAET inadvertently shaped the character of the political settlement that emerged, it is instructive to look at developments in three domains: the political space that opened up under UNTAET; the organization of government; and the making of the constitution.
The increasingly contested political space
Seemingly, the Timorese resistance movement was speaking with one voice in the lead-up to the popular consultation in 1999. It was organizationally united under the umbrella of the Concelho Nacional de Resistencia Timorense (National Council of Timorese Resistance; CNRT), a body established in 1998 which brought together all major East Timorese political parties, the Catholic Church and civil society organizations to guide the political transition to independence. However CNRT’s overarching message of national unity and cooperation masked deep fault lines within the political elite. Perhaps surprisingly, the party divisions of 1974–5 had faded, despite the events leading up to the Indonesian invasion. The divisions among those who had fought and struggled on the same side for independence over the long years of occupation were much deeper, fuelled by ideology and grievance, parallel histories and tactical positioning to snatch the prizes of victory.
The bitter fruits of occupation that divided former comrades-in-arms in the armed resistance struggle have been comprehensively documented elsewhere. 7 Significantly, several of the leaders who were purged at various stages emerged as influential political spoilers during the UNTAET period. Other divisions opened up as the post-conflict political settlement began to take shape. The returning Timorese diaspora, relatively wealthy, educated and fluent in the languages of the new political order, were deeply resented by those who had suffered through a quarter century of occupation and now found themselves marginalized economically and professionally. Young Timorese, whose activism had carried the resistance struggle through the decade of the 1990s, were also resentful of the older generation of leaders and its impositions. However, these divisions were not apparent as UNTAET was designed and deployed.
The UN, through its Department of Political Affairs (DPA), engaged with CNRT as the voice of the independence struggle in the lead-up to the ‘popular consultation’, and it adopted the CNRT flag as the symbol for the independence option on the ballot paper. DPA and World Bank staff had considered ways of involving the Timorese in the management of the transition, and planned for a national consultative commission which would serve as a quasi-legislative body and as a framework for participation. 8 CNRT expected no less. At a press conference in late September 1999, leading CNRT figure and Nobel laureate Jose Ramos Horta asserted that ‘on the basis of the legitimacy that came from the 30 August referendum, the CNRT expected to be consulted at every level and to participate actively in the transition period’.
Just days before the UNTAET mandate was resolved, CNRT elected a Transition Council to serve as the principal dialogue partner with UNTAET. It was to be sorely disappointed. The politics of the new mission and a switch in responsibility at UN headquarters from DPA to the Department of Peacekeeping Operations (DPKO) saw CNRT’s standing eclipsed.
Instead, UNTAET elected to engage with a select group of Timorese leaders and spokespeople chosen along the independence/autonomy axis that steered the popular consultation. This was reflected in the composition of the National Consultative Council (NCC), constituted only weeks after the mission was mobilized as ‘the primary mechanism through which the representatives of East Timor shall actively participate in the decision-making process of UNTAET’. 9 Its membership included seven representatives of CNRT and three representatives of groups outside CNRT, these numbers purporting to broadly reflect the outcome of the popular consultation. A representative of the Catholic Church, the UN Transitional Administrator and a further three members of UNTAET accounted for the remainder of the Council. All members were appointed by the Transitional Administrator.
Under pressure from civil society, UNTAET gradually expanded the breadth and authority of its consultative machinery. In April 2000, in response to complaints that the NCC was a secretive body, UNTAET opened proceedings to invited observers from NGOs and the guerrilla organization Falintil. Three months later, in July 2000, a regulation was made to replace the NCC with a more broadly based – but still appointed – National Council. The expanded membership of 33 Timorese accommodated a spectrum of civil society, sectoral and sub-national representatives, as well as the 10 CNRT and political party representatives and the representative of the Catholic Church included in the NCC. Importantly, it was an all-Timorese body, empowered by regulation ‘to act as a forum for all legislative matters related to the legislative authority of the Transitional Administrator’, 10 although the Transitional Administrator retained a power of veto.
On the same day, a further regulation was promulgated establishing a Cabinet for executive decision-making. Eight Cabinet portfolios were created, four of which were assigned to Timorese. These covered the ‘soft’ social and economic development functions. The sovereign portfolios of finance, political affairs, justice and police were assigned to international personnel, and the Transitional Administrator chaired the Cabinet. Controversially, three of the four Timorese Cabinet posts went to members of the diaspora; these three portfolio holders were also leading figures in Fretilin and UDT, the two dominant political parties which would pull out of CNRT the following month, leaving CNRT with little voice in the Cabinet.
The break-up occurred at the national congress of CNRT held in August 2000, which brought into the open the differences between the leadership of CNRT and its main component party, Fretilin, and to a lesser extent with UDT. Neither party joined the CNRT Permanent Council, reducing it to a rump of newer and smaller parties. Their withdrawal weakened CNRT politically and undermined its claim to primacy as the voice of the people and the natural interlocutor with UNTAET.
Fretilin’s withdrawal from CNRT freed it to campaign politically at the village level, stealing the march on its political opponents. Meanwhile, CNRT was left clinging to the principles it had affirmed in the Pact of National Unity approved at the August national congress, which embraced political cohesion and coalition. Xanana Gusmao, as president of CNRT, railed bitterly against the political mobilization underway in an open letter to the people of East Timor on 5 December 2000: some political groups have already begun to confuse the people by starting to register the population, others compel them to sign up for membership and threaten them with retaliation by FALINTIL . . . other groups fly flags everywhere while at the same time spreading the winds of conflict amidst the population. Violence, lies and the psychological and emotional abuse of our people is starting to occur. The existing political tension reminds us of the democratic awakening of 1974 . . .
On 30 August 2001, the people of East Timor voted for a Constituent Assembly to develop a constitution for the emerging state. It would also act as a legislative body in the lead-up to independence. Concurrently, executive functions would pass to a new and enlarged transitional Cabinet composed entirely of East Timorese. The Security Council was briefed in the lead-up to the election that the Cabinet, which was described as a ‘Cabinet of National Unity’, would be appointed by the UN Special Representative on 15 September, and that its composition would broadly reflect the outcome of the election.
Fretilin won a majority of votes in the election, and bargained hard over the formation of the Cabinet. The Transitional Administrator had appointed Mari Alkitiri, the secretary-general of Fretilin, to assist him in determining the composition of the Cabinet, and its finalization was delayed by several days while tough negotiations continued behind the scenes. The outcome was a Cabinet made up of 10 Fretilin members, three Democratic Party members and 11 independents.
While UNTAET seemingly achieved the aim of a pluralistic Cabinet, an examination of function allocations reveals that Fretilin dominated the most strategically powerful positions. Six of the 10 ministerial posts covering major sovereign and economic functions were assigned to Fretilin. While the foreign affairs and finance portfolios were assigned to independents, each portfolio was also allocated a Fretilin vice-minister. The remaining two portfolios going to independents were health and education. Fretilin in addition held the two strategically important positions of Secretary of State for the Council of Ministers (managing the flow of government business) and Secretary of State for Natural and Mineral Resources (the predominant source of public revenue into the future). As UNTAET’s transition strategy included reinforcing the policy and executive powers of the new Cabinet, Fretilin exercised considerable influence over the shape of public policy in the final stages of the transition to independence.
The organization of government
In the course of building the machinery of a state, UNTAET made a succession of decisions which shifted the distribution of power in subtle ways, creating winners and losers in the post-conflict settlement. The examples are legion, but three of the more far-reaching are outlined below.
The language of government and law-making
The political history of Timor created what seemed like an unbridgeable linguistic divide under UNTAET. The older generation of the resistance and the diaspora favoured Portuguese as the expression of their patrimony and a symbol of the resistance; the younger generation, who had carried the resistance struggle forward through the 1990s, were educated in Bahasa Indonesia. For many, there was no effective common language: the influential diaspora did not speak Bahasa; few of the youth spoke Portuguese; and the lingua franca – Tetun – was largely excluded from the equation. Whatever decision was taken on the official language, it would include or exclude particular interests: from jobs, from education and from the more intangible benefits of nationhood and social inclusion.
Portuguese enjoyed an advantage from the outset. The Magna Carta agreed by CNRT at its founding convention in Portugal in 1998 positioned Portuguese as the official language, and this position was reaffirmed repeatedly by the Timorese elites during the first year of UNTAET, despite widespread criticism. The CNRT congress in August 2000 again proclaimed Portuguese as the official language, although Tetun was recognized ‘as the national language, to be developed within a five to ten year period as a second option as an official language’. 12 This offered little comfort to those left out in the linguistic cold. UNTAET itself tried to step back from the decision on an official language as a choice that no external actor could impose, irrespective of mandate. 13 The effects were intense and divisive public debate, uncertainty in critical areas of public policy such as the language of schooling and the development of the judiciary and a mounting sense in important sections of the community that the peace dividend they had earned was bypassing them.
Establishing the armed forces
Decisions on whether there would be a standing armed force, its size and the method of recruitment were critical to the fate of the former guerrilla force, Falintil, which was cantoned in the iconic mountain township of Aileu through the first 18 months of the UNTAET administration, out of sight and with an escalating sense of grievance. Its future was uncertain: would its members be rewarded as the heroic fighters of the resistance, or consigned to the anonymity of subsistence agriculture back in their home villages? As their prospects narrowed, who among them would be favoured over the others?
In the lead-up to the independence vote, the resistance leadership had determined not to have a standing army in the new state. This position was revised over the following months in the wake of post-ballot violence and an ongoing militia threat from across the border. Around April 2000, CNRT president Xanana Gusmao wrote to the UN Secretary-General proposing the establishment of a defence force based on Falintil, a proposal characterized by the UN as ‘sensitive and complex’. In response, the UN accepted an offer from the United Kingdom to fund an expert group to identify options.
In the interim, Falintil fighters remained sequestered in the cantonment, and the cantonment itself was left to fester. By the time the expert group from King’s College London arrived in July 2000, the atmosphere in the cantonment was tense: conflict had broken out some weeks earlier between leadership elements, UN personnel had been controversially evacuated and the Falintil leadership was deeply hostile towards UNTAET over its perceived neglect and disrespect. The King’s College group reported in August, and on 12 September the Transitional Cabinet approved the establishment of the East Timor Defence Force. It was to be made up of two battalions: the first would be recruited exclusively from members of Falintil, and the second – to be recruited subsequently – would be open to all applicants.
This decision further divided the cohort of former fighters and its implementation intensified pre-existing rifts. The first battalion comprised only 650 places, while Falintil numbers were officially set at around 1900. Registered Falintil who were not recruited received reintegration assistance to move back into civilian life. The defence force recruits were seen as the winners, those receiving reintegration assistance were the losers. A ‘forgotten’ few hundred men not even included in the registration lists during the demobilization were the double losers. The selection process was controlled by the Falintil High Command, which recruited in its image. The resulting first battalion has been characterized as both made up of Gusmao loyalists and dominated by Timorese from the eastern districts, demarcating the fault lines of the 2006 conflict. Of the Falintil commanders and men who were excluded from recruitment, a sizeable minority had an acrimonious relationship with Gusmao and the Defence Force High Command, and were politically identified with elements of Fretilin. 14
Sub-national governance
If UNTAET was a bold attempt at state-building, the districts were a critical building block which was largely overlooked. With some 80% of the population living outside the capital in small towns and villages, UNTAET would be judged by its capacity to deliver basic services at local level, and village political organization was as important to effective local governance as it had been under the Portuguese and Indonesian administrations. On both counts, UNTAET scored poorly.
Planning for the mission envisaged the appointment of district administrators in each district to oversee the work of governance and public administration and to coordinate UNTAET activities at district level. Beyond this broad job description, administrators had little guidance and were given few tools to reach out to and support local populations. Although the administrator positions were filled quickly, staffing and resources were patchy in an environment where the districts were out of sight and where competition from Dili-based managers was direct and intense. The organizational arrangements for the districts were poorly conceived and executed, and engagement with local populations was weak at best.
UNTAET adopted the broad administrative divisions of sub-national governance used during the Indonesian administration: 13 districts, each with several sub-districts, with administrative offices at each level. However, under UNTAET, the sub-district operation was limited to a modest policing and minimal administrative presence, and staff were glacially slow to deploy. A year into the mission, many offices were yet to open.
The Indonesian system was decentralized, with district offices managing and determining priorities for significant aspects of local development, and administrative budgets were funded both from central appropriations and locally sourced revenue. Elected district assemblies played an advisory role. 15 In contrast, UNTAET arrangements were idiosyncratic and inherently centrist in an environment where the centre had almost no capacity – or in some instances, no inclination – to engage with the districts, and planning occurred in a vacuum.
Under the UNTAET arrangements, officials responsible for basic services such as health, education and agriculture reported directly to head offices in Dili which determined policy and budget allocations. The district administration was left to coordinate the rump of functions, but without a budget allocation or a planning template. If something needed funding, the district administrator would have to go cap in hand to the sectoral official in Dili. Similarly, policy questions would be referred through the Office of District Administration in Dili to the relevant proto-department in the capital. These arrangements were a recipe for inaction in a post-conflict setting where the humanitarian engagement was winding back and the population was desperate for basic services.
These arrangements have left an uncomfortable legacy of structural and operational challenges which are still playing out. These range from basic logistical problems such as how to deliver a payroll to a government workforce scattered around the districts, to high order policy debates about the appropriate form and provisions of decentralized governance.
In Timor, the village has been the point of intersection of government and community for over a century. The Portuguese colonial administration appointed village and hamlet chiefs as intermediaries for the district and sub-district administrative officials. The Indonesian system broadly preserved this organizational structure, and introduced elections for village chiefs. The clandestine movement within the resistance struggle also organized around leaders at the hamlet, village and sub-district levels, creating a powerful tool for population mobilization. The village chief was a central figure in these arrangements, at ‘the junction where clandestine powers, traditional political concepts, and the modern world collided with one another. He was still the crucial point of contact for the relationship between the “inside” and the “outside”, between the local level and government.’ 16
UNTAET had little understanding of indigenous political organization, and barely engaged at the village level. Under pressure to broaden consultation, it introduced District Advisory Councils in July 2000 to engage local leaders in the decision-making process of the Transitional Government at district level. The operation of the councils was haphazard, being contingent upon the relative commitment of the district administrator who chaired them, the popular legitimacy of those appointed, the character of matters discussed and even basic logistics such as a common language and ease of access to the district capital for meetings. (Unhelpfully, UN rules forbade the carriage of non-UN personnel in UN vehicles and little other transport, public or private, had survived the looting and destruction of September 1999.)
In May 2000, CNRT vice-president Jose Ramos Horta requested the UN Secretary-General replace all international district administrators with local leaders by August; several weeks after this deadline, UNTAET announced the appointment of four Timorese administrators (later reduced to three) and six deputies. In time, other appointments followed. Those appointed were handed something of a poisoned chalice: an organizationally and structurally dysfunctional system, and a serious dissonance between the actual character of the system and the community’s experience of and expectations of government at the local level.
A legacy of UNTAET’s concentration in and on the capital was the emergence of Dili as a burgeoning city-state geared towards the international economy. Meanwhile, the districts languished, buffeted by the loss of Indonesian commodity subsidies and bypassed by development while their young men drifted to Dili in search of opportunity in the cash economy. In the relationship between the emerging state and its society, the people of the districts were serious losers.
The making of the constitution
Constitutions encapsulate many of the formal elements of political settlements at the time of their making, laying down the rules governing the distribution and exercise of power, as well as the oversight of its use. Unsurprisingly, political transitions are therefore often marked by the overhaul of the national constitution, or in the case of a completely new state such as Timor-Leste, by the creation of a constitution for the first time.
Although the development of a constitution was not expressly listed in the UNTAET mandate, it was foreshadowed in the report to the Security Council on which the mandate was based, and UNTAET proceeded on the basis that the adoption of a constitution was a prerequisite for the transition to independence. In essence, a constitution was seen as necessary to form a legitimate government in the eyes of the international community, which would in turn allow for the transfer of power from the UN to the sovereign state of Timor-Leste.
In East Timor, the process adopted to develop the constitution, and some of its most important substantive provisions, had the effect of marginalizing key elite interests and contributed to the build-up of frustrations which crystallized into conflict over the following years. The process was led by UNTAET in consultation with the National Council, and several of the decisions it took had far-reaching consequences. Significant among these were:
The form of the body that would draft the constitution;
The mechanism for determining the composition of the Constituent Assembly;
The timetable for developing the constitution;
The provision for the Constituent Assembly to morph into the legislature at independence; and
UNTAET’s hands-off approach to the substance of the constitution.
Initially, two mechanisms were considered for the development of the constitution: an appointed constitutional commission or an elected constituent assembly. Proponents of the former cite the legitimacy that comes from wide popular consultation, the technical expertise and level of reflection involved and the elevation of the process above politics. Proponents of the latter cite the legitimacy that comes through the ballot box and, less expressly, the advantage of speed. There was some divergence of views at senior levels of UNTAET and the wider UN apparatus about the merits of the two models, but the position cemented in support of a Constituent Assembly by late 2000.
CNRT also shifted ground over this period. Its congress in August 2000 emphasized the importance of a sound and credible constitution that reflected the wishes and aspirations of the people and of civil society. It went on to recommend the establishment of a commission made up of experts on constitutional law to draft the constitution, drawing on data collected throughout East Timor. However, three months later the president of CNRT presented an accelerated Calendar for Political Transition to the National Council which envisaged the drafting of the constitution by an elected constituent assembly. In the end, the countdown to independence may have been the paramount consideration for both the UN and the president of CNRT. For the former, the pressure was on to complete a costly mission as swiftly as possible; for the latter, political authority was slipping away with the passage of time and the emergence of Fretilin from out of CNRT’s shadow.
The choice of a constituent assembly effectively narrowed the spectrum of people likely to be directly involved in determining the substance of the constitution, excluding those without a political party power base, and those wishing to engage in nation-building outside the party process. In consultations initiated by the National Council on a suitable approach, civil society pressed hard for public participation in the development of the constitution and the National Council member representing non-government organizations presented a draft regulation proposing the establishment of national and district constitutional commissions; these would consult with people at district and sub-district level and feed the results into the Constituent Assembly.
The proposal split the National Council and once again highlighted the depth of animosity between Xanana Gusmao and Fretilin. Fretilin rejected the proposal as political manipulation, triggering an acrimonious debate with Gusmao, who supported the proposal. Gusmao resigned immediately afterwards, claiming that the National Council no longer reflected the views of the Timorese people, and pledged to dedicate himself to working with civil society.
For the first and only time in the life of the mission, the UN Transitional Administrator formally overruled the National Council, unilaterally promulgating a directive establishing constitutional commissions in each of the 13 administrative districts. The commissions were to consult widely and submit reports to the Constituent Assembly. However, the gesture proved hollow as the Fretilin-dominated Constituent Assembly ignored the reports, which were dismissed as lacking legitimacy. 17
The mechanism adopted to elect the Constituent Assembly further narrowed the basis of popular representation. The Assembly comprised 88 members: 75 were elected on a proportional basis from a single national constituency using a closed list of candidates; the remaining 13 members were elected from single member district constituencies (one for each of the 13 districts) on a first-past-the-post basis. A consequence of the electoral system was that those elected largely owed their position – and their loyalty – to the party that placed them in a winnable slot on the party ticket, with little direct accountability to voters.
UNTAET favoured a single national constituency and proportional representation in order to achieve a pluralist Assembly. The inclusion of the 13 district seats was a concession to proponents of local representation. The combination of the two voting mechanisms had the effect of magnifying the Fretilin vote. Although Fretilin won only 57.3% of the overall vote (and 43 out of 75 seats) in the national constituency, it won 12 of the 13 district seats 18 giving it 55 of the 88 seats or 62.5% overall. This represented a 5.2% advance on its proportional vote share, yielding it a bonus five seats. In partnership with a like-minded minor party, Fretilin commanded the necessary 60 seat super majority required for the passage of the constitution. The consequence was a majoritarian Assembly that created no incentive for compromise.
The whole process of constitution-making was done at breakneck speed: the enabling regulation provided only 90 days from the first sitting day of the Constituent Assembly to the adoption of the constitution, mirroring the UN timetable for the Cambodian constitution several years beforehand. The key political actors seemed comfortable with the timetable, although the Church, several minor political parties and Timorese civil society were deeply unhappy with it. On 18 April 2001, the NGO Forum wrote to UNTAET criticizing the rushed timetable and proposing that, unless there were a significant extension, the resulting constitution should be treated as an interim text only pending further broad-based input and consultation. This appeal gained no traction. Although a further three months was eventually added to the timetable to incorporate a final round of what proved to be little better than token consultation on the draft text, the status of the resulting constitution was final.
A provision for the Constituent Assembly to morph into Parliament at independence was another deeply contested decision. The mechanism was foreshadowed in the regulation establishing the Constituent Assembly and, not surprisingly, the Assembly built it into the draft of the constitution. For UNTAET, the transformation of the Constituent Assembly into Parliament avoided the additional step – and the attendant time and cost – of a further election. For the Constituent Assembly, the provision ensured its relevance beyond independence.
The provision was problematic on several fronts. It created a serious conflict of interest for members of the Constituent Assembly, whose own interests were affected by the critical policy choice. It was also problematic from a democratic perspective, as the citizens of East Timor had elected a body to make a constitution rather than a body to govern them into the future. There was strong concern that voters had been denied the opportunity to hear and vote on the policy platforms of the parties as prospective governments, and a concern that this deficit undermined the legitimacy of the future government.
When the implications became apparent, high profile leaders, including Xanana Gusmao and Bishop Belo, and sections of civil society urged UNTAET to hold a further election to choose the Parliament. UNTAET’s response was to leave the decision to the Constituent Assembly on the grounds that it was the legitimate representative body for the Timorese people. This response bordered on the disingenuous, since the Constituent Assembly was itself directly interested in the outcome and its position was already clear.
As a matter of policy, UNTAET stood back from the deliberations governing the substantive provisions of the constitution, on the grounds that the contents of the constitution must reflect the sovereign act of an elected body. 19 Five constitutional drafts were tabled by political parties in the initial weeks of the Constituent Assembly, although the Fretilin draft prevailed as the primary text, and the constitution which passed adhered to it closely. Sixteen Assembly members voted against the first draft, and the outcome was similar when the final draft was put to a vote after a last round of perfunctory consultation. The parties voting against the text voiced their concerns that the constitution was a Fretilin document with only minor adjustments to the original draft. 20
To the extent that constitutions encapsulate many of the formal elements of a political settlement at the time they are made, and given that political settlements are about the distribution of power within a political system, the distribution of executive power in Timor’s constitution provides a window into the character of the political settlement in the months before independence. Two elements of executive power in particular offer an interesting insight into what was happening: the centres of executive power; and the executive’s law-making powers.
CNRT anticipated a presidential system of government, with the powers of the president defined in the constitution. In the wider popular imagination Xanana Gusmao, as the leader of the resistance struggle and president of CNRT, was the ordained leader of the nation and the expectation was that, as president, he would hold paramount executive power. This was a natural assumption for a people who had lived under the Indonesian presidential system.
Throughout the UNTAET period, Fretilin leaders publicly acclaimed Xanana Gusmao as the future president. At the same time, the comprehensive constitutional draft which they had developed in 1998, and which they were positioning to become the basis for Timor’s constitution, contemplated a semi-presidential system, which concentrated power to initiate and execute policy in the prime minister, leaving the office of president with residual powers to restrain specific expressions of executive and legislative power.
A sense of ambush prevailed across wide sections of the political elite as the implications of the Fretilin draft sank in. It was widely seen as a deliberate and devious emasculation of the office of president in order to eclipse the political power of Xanana Gusmao. In a press conference only weeks before the scheduled presidential election in April 2002, Gusmao signalled a reluctance to stand as ‘the only powers accorded the president under the draft constitution were the powers “to eat and sleep”’. 21
In the lusophone tradition, Timor’s constitution is unremarkable: it follows the semi-presidential model adopted by Portugal in 1976 after its military-led revolution, and by all the new states emerging over the same period from Portugal’s former African colonies. In 1982 Portugal amended its constitution in the transition to a fully civilian government to reduce the powers of the president. Although the resulting constitution has been characterized by some academics as a parliamentary system, a better characterization is perhaps as a premier-presidential regime, a sub-class of semi-presidential systems. 22 In premier-presidential systems, executive power is concentrated in the office of prime minister, but significant legislative and non-legislative powers are vested in the president. These powers include veto over parliamentary bills and executive-made regulations; appointment of the prime minister; dissolution of parliament; and dismissal of the government and removal of the prime minister.
The extent of powers assigned to the president is perhaps as significant as the fact of a semi-presidential system in Timor, and a comparison of the Portuguese and Timorese constitutions is revealing. While the Timorese constitution shares many of the features of the Portuguese, it narrows the powers of the president in subtle ways. For example:
Broad discretions in the Portuguese constitution, such as the power to dissolve parliament, are narrowed in the Timorese constitution by the specification of very precise circumstances which may trigger the exercise of the power;
Discretionary powers in the Portuguese constitution become mandatory exercises of power in the Timorese constitution, e.g. the presidential power to call a referendum;
Stricter provisions are imposed in the Timorese constitution for the exercise of a power, e.g. in the appointment of the prime minister; and
Certain powers are omitted in the Timorese constitution, e.g. the provision for the president to chair the Council of Ministers when so requested by the prime minister.
With Xanana Gusmao elected president and his bitter political opponent from Fretilin, Mari Alkitiri, appointed prime minister, the ‘dual leadership system’ of the constitution had the effect of creating two rival power centres, with the potential to destabilize the state. 23 While the prime minister had the power to lead on policy, the president held enormous moral authority with the people and was handed a powerful constitutional tool to frustrate the executive through the exercise of the presidential veto over legislation. These conditions set the scene for a fierce political contest over the following years.
The Timorese constitution extends wide law-making power to the executive. This again resembles the Portuguese constitution, combining wide legislative power in the government with a presidential power to veto executive legislation, as well as a provision for the Assembly to consider, amend and disallow legislation made by the executive when it is exercising delegated powers. The more interesting consideration is the extent to which the Timorese constitution amplifies the Portuguese scheme in favour of the executive.
A notable area of difference is the breadth of matters on which the executive may legislate. Both constitutions describe matters on which the parliament may delegate legislative authority, and matters for which the executive has exclusive legislative power. In the Timorese constitution, while the list of matters on which the parliament may delegate legislative power is shorter, the scope of various heads of power is rather more ample. Nor are the parliamentary checks as robustly stated; the Portuguese constitution expressly stipulates that parliament is responsible for considering delegated legislation, and that such legislation must reference the legislation that authorizes its making; the Timorese constitution is silent on both.
A major difference between the two constitutions is in the scope of matters on which the executive has exclusive legislative power. In the Portuguese constitution, this is limited to matters respecting the government’s own organization and functioning (Art. 198(2)). This provision is repeated in the Timorese constitution, but a further power is added, namely, to legislate exclusively on direct and indirect administration of the state (Art. 115(3)). This power could be interpreted extremely broadly. As neither constitution empowers the parliament to scrutinize legislation made by the executive in the exercise of its exclusive legislative power, the president’s power of veto becomes the only check on controversial legislation. This arrangement has the potential to magnify hostility in a situation of cohabitation between a politically opposed president and prime minister, and this is the precise situation which prevailed at Timor’s independence.
Conclusions
UNTAET was mobilized to deal with the aftermath of Timor’s violent separation from Indonesia, and consolidating the political settlement with Indonesia was a priority. However, the transition in Timor really involved two distinct political settlements. As well as building a constructive bilateral relationship with Indonesia that included provision for – and supervision of – those who had left Timor and would not return, a new settlement was necessary within Timor between those who had struggled for independence to frame the distribution and exercise of power in the new state.
The internal settlement was largely under UNTAET’s radar. There had been a strong elite convergence in the late 1990s, embodied in the formation of the National Council of Timorese Resistance (CNRT) in 1998, and CNRT had provided an easy reference point for the international community in the lead-up to the independence vote in August 1999. Yet this apparent unity masked deep divisions within. Consensus on the goal of independence did not equate with consensus on how – and by whom – Timor should be governed. Within a year of UNTAET’s deployment, the elite convergence had disintegrated, paving the way for conflictual politics. It is an open question whether the internal political settlement which subsequently took shape would have been less divisive had UNTAET taken different decisions about how it engaged with elite and community interests, or whether it would simply have given the edge to different players without altering an inevitable outcome.
That UNTAET’s decisions would affect the distribution of power in subtle ways was unavoidable. The judgement on the mission rests more on the extent to which it was alert to the potential consequences, and framed its decisions with these in mind. Here, the report card is mixed. Its actions suggest that it mistook the absence of government as a political vacuum and, while it consulted narrowly, it largely drove the state-building agenda according to its own imperatives. In UNTAET’s defence, when it was deployed, state-building was seen more in terms of building the machinery of state than in terms of supporting an inclusive political settlement and state institutions that worked in the interests of the wider society: these insights entered the development discourse several years later.
UNTAET was under pressure from both the Timorese leadership and the Security Council to complete its mission quickly. In the stampede to build the core structures for an independent state and to finalize the constitution so that a political transition could be effected, UNTAET ticked off on the outputs expected of it, but these did not translate into a stable platform for the state. A stable state would require more than the sum of the parts which the mission was assembling.
The state-building process in Timor under UNTAET created clear winners and losers, and disaffected losers are a potential threat to stability as they work on the institutional margins to effect a realignment of power. This played out in the escalating tensions in East Timor through the UNTAET period and into the early years of independence. Although UNTAET consolidated the relationship with Indonesia and built the organizational framework for the independent state of Timor-Leste, it failed to nurture an inclusive internal political settlement as the essential foundation for a stable state.
Footnotes
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.