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Graham Nicholson[*]
Extensive community consultation and representative debate went into the constitution making process.
East Timor formally became independent on 20 May 2002, this being the culmination of a remarkable history of constitutional development for one half of the Island of Timor, located as it is between Indonesia and Australia. It is not necessary in this article to dwell on the detail of that history, as it has been variously recorded elsewhere.[1] Sufficient for present purposes to note that East Timor has passed through a number of constitutional stages in its path to independence. For many centuries it was under Portuguese colonial rule. Following Portuguese withdrawal in 1975, a short civil war occurred, and then there were several decades of disputed Indonesian rule. Under international and domestic pressures, Indonesia agreed to a United Nations supervised plebiscite on the future of East Timor in 1999, regarded as an act of self-determination. By a substantial majority, East Timorese voted for independence. Severe disruption and human rights abuses followed the vote, which only abated after a United Nations sponsored multinational force lead by Australia had secured the peace. East Timor was then placed under a United Nations administration (UNTAET), with a charter to prepare East Timor for independence.
The origins of the new East Timor Constitution go back to the Declaration of Independence proclaimed by one indigenous political party, Fretilin, on 28 November 1975, a few days before Indonesian forces invaded the country. A new constitution was adopted by Fretilin at the time. Most of the time after that was spent on the resistance campaign, but plans for eventual independence after the end of Indonesian rule were kept alive. In 1998, various East Timorese independence leaders met in Portugal and adopted a ‘Magna Carta on Freedoms, Rights and Duties, and Guarantees, for the People of East Timor’. Implementation had to await the successful vote on self-determination in 1999.
UNTAET, after commencing its duties, undertook a program of involving East Timorese in matters of administration. It authorised two successive transitional governments of East Timorese leaders to assist it. On 30 August 2001 UNTAET organised the first national election, on that occasion to choose the members of a Constituent Assembly who were charged with drafting a constitution for an independent and democratic East Timor, as well as other functions.[2] A majority of seats were won by members of Fretilin. The Constituent Assembly was inaugurated on 15 September 2001. It met in the new parliamentary chamber in Dili. Prior to this, commissions had gone to the various regions of East Timor to inform the public of the proposed process of constitution making and its importance and to seek views.
The Constituent Assembly formed four thematic committees from among its members, as follows:
Committee 1 — Fundamental rights, freedoms and duties, national defense and security.
Committee 2 — Organisation of the state/Organisation of political power.
Committee 3 — Economic, social and financial organisation.
Committee 4 — Fundamental principles, control of constitutionality and amendment of the Constitution, final and transitional provisions.
These committees held public hearings over a number of sitting days, and then reported back to the Plenary Session of the Assembly with drafts of their parts of the proposed Constitution. The Plenary Sessions were also open to the public, and many people attended the debates. The proceedings were also reported live on radio. The public interest was considerable. A Systematisation and Harmonisation Committee was also formed from the members of the Assembly, and was charged with preparing an overall draft for the Plenary Session from the reports of the other Committees. The Plenary Session then proceeded to consider the whole draft constitution clause by clause, a process completed on 9 February 2002. The draft was then widely circulated to the public in various languages, and groups of members were assigned to go to various parts of the country to hold public meetings and to elicit views. The Plenary Session reconvened on 4 March 2002 to receive the reports from these groups, and then adopted the final draft with a few changes on 22 March 2002. No national referendum to adopt the draft was required.
On 14 April 2002, President Xanana Gusmao was directly elected as the first President of East Timor by national vote under the auspices of a UNTAET law. The new Constitution, as finally adopted by the Constituent Assembly, came into operation on formal independence, 20 May 2002.[3] From that date, the new President assumed office in accordance with that Constitution[4] and the Constituent Assembly ceased to function as such and its members became the members of the first National Parliament of East Timor.[5] Fretilin leaders forming the second Transitional Administration became the new government pending the appointment and swearing in of the government in accordance with the Constitution,[6] an event that subsequently took place.
Thus the process of constitution making was completed after extensive community consultation and representative debate. That it was achieved peacefully and democratically speaks highly of the process. Suggestions have been made that it was a process dominated by Fretilin members, and that the Constitution as finally adopted was in large part a reflection of earlier Fretilin thinking. Whether this is fair comment or not, the democratic and relatively open nature of the process, commencing from the act of self-determination by national vote, cannot be denied. Proposals were made towards the end of the process by non-Fretilin members that a further national election should have been held for the first parliament upon formal independence, but this view was not accepted by a majority of the elected members of the Constituent Assembly. The fact is that there were two national votes involved, one for the act of self-determination and one to elect the Constituent Assembly, and there was plenty of scope for wider public observation and participation in the process at its various stages.
The end product is essentially a liberal, democratic document, a factor of some significance given the lack of long-standing democratic traditions in East Timor, the disturbed state in which Indonesia left the country, the poorly developed nature of the country, and the short time in which the country had to prepare for independence following Indonesian withdrawal. The fact that the process of transition occurred under United Nations auspices does not unduly lessen the significance of the achievement.
In this, the process lends support for a contemporary developing standard to the effect that constitution making in the democratic, secular tradition should be an open, public-participatory exercise if it is to have a reasonable chance of long-term success.[7] There is an older parallel to be found in the democratic and mainly open process used to formulate the Australian Constitution over 100 years ago.[8] Similarly, the open, parliamentary committee process used more recently in the Northern Territory to draft a proposed constitution for the Territory as a new state in the Australian federation provides an instructive parallel, given subsequent government actions that lead to the failure of the process.[9] The process in East Timor contrasts with the more conservative view, that constitution making is a matter primarily for experts in politics and for legal drafters, to be undertaken behind closed doors, an approach that was commonly used in the drafting of national constitutions of newly independent countries by a process of political negotiation with the former colonial masters in the second half of the 20th century.[10] Typically such constitutions imported western constitutional concepts with few local initiatives. Where independence came about in other countries following conflict and violence, the scope for more local involvement and initiative was increased, with the prospect of a truly autochthonous constitution. However, in such situations constitution making may often have been seen as a task for politically educated elites.
The example in Papua-New Guinea, involving wide- spread public consultation and then a constitution made by an elected Constituent Assembly, the terms of the constitution displaying considerable local initiative, provides an even stronger example. The making of the East Timor Constitution has more in common with this latter category, with a real effort being made to reach out to the wider population in the process, and with the constitution makers being democratically chosen by the people. Surprisingly, it is apparent that western constitutional concepts were mainly employed in the process in East Timor, the view being that they derived from the Mozambican example, which in turn were derived from the Portuguese Constitution.
It remains to be seen whether the East Timor Constitution in its present form will prove to be acceptable to those in power and workable in the longer term, particularly after the United Nations military involvement is removed from the country. It is noteworthy that the method for changing the terms of that Constitution, apart from a few specific constitutional principles, should not involve any great difficulties for those in power. The basic rule is that a two-thirds majority vote of the members of parliament is required to approve changes, as well as some other procedural requirements, with a revision every six years and at any other time on a vote of four-fifths of the members. No national referendum (apart from any change to the republican system or the national flag) nor further constituent assembly or the like is required.[11]
The Fretilin majority in the first parliament is close to a two-thirds majority, and there is always the possibility that a few other members of parliament could be persuaded to join in any proposal for constitutional change. There would be real concern if this position were to be used to undermine the liberal, democratic nature of the Constitution, with guaranteed rights of the citizen, in preference for some more authoritarian constitutional regime. It is not suggested that this will occur, merely that there is the potential for it to occur. The history in other newly emerging countries in this regard cannot be discounted, particularly when faced with overwhelming problems of poverty, under-development, plus various other internal and external pressures.
In this regard, the process used to make the East Timor Constitution may yet prove to be as significant as the actual terms of the Constitution. Too much reliance can sometimes be placed on the high ideals and the constraints placed on government as expressed in a written, secular constitution, as if they have some divine or sacred force, when the realities of the situation on the ground may display quite different characteristics. Numerous examples in communist countries (or former communist countries) attest to this. Constitutionalism can rest on fragile foundations, particularly if the population is not adequately informed and educated on matters of democratic governance.
Critical to this matter is the relevant position and powers of the East Timorese President vis-a-vis the Prime Minister and the national parliament. The President occupies a specific constitutional office, elected nationally on a system of universal suffrage for a term of five years, separate from parliamentary elections. The powers of the President include a right of veto over proposed legislation, the ability to summon and dissolve the parliament, fix dates for elections, appoint and dismiss the Prime Minister, appoint the most senior judicial officer, exercise the power of pardon, refer statutes to the Supreme Court for review of constitutionality, exercise the powers of the Supreme Commander of the defence forces, chair the Supreme Council of Defence, appoint senior defence force officers, chair the Council of State and call national referenda. In some cases these powers are not at large but are controlled by certain other factors. The President is not a member of parliament, nor of the government or of the Council of Ministers. The government, headed by the Prime Minister, is, however, accountable to the President as well as to the parliament for conducting and executing domestic and foreign policy in accordance with the Constitution and the law.[12]
In a written submission to the Constituent Assembly on an earlier but similar draft of the Constitution, the Australian section of the International Commission of Jurists stated, inter alia, that it would establish a Westminster style parliamentary system, with the President carrying out little more than the functions of the Australian Governor-General, being totally subordinate to the office of Prime Minister. It added that as a result, the office of President was thought to be unlikely to attract candidates of the stature of Xanana Gusmao.[13] Mr Gusmao who was understood to be a reluctant candidate for this office, was elected to the position by a large majority. However, the reason for this reluctance may have had more to do with the nature and prominence of the office and the fact that Mr Gusmao was not nominated by Fretilin, rather than what is said to be the lack of power attaching to the office.
While it seems clear that the new Constitution of East Timor falls well short of the USA ‘Presidential’ model of government, it does seem to leave some scope for the exercise of real political power and influence by the President. The degree of that power and influence is dependent in part at least on the strength of character and political skill of the incumbent.[14] It is not at all clear that the conventions of the Westminster system, which dictate that the head of state must act in accordance with the advice of their responsible ministers in the parliament (except in the case of the very narrow and controversial ‘reserve’ powers), would come into play in East Timor. The head of state in the Westminster model is of course not normally directly elected by the people, but holds office directly or indirectly according to the wishes of the Prime Minister. If the President of East Timor is found in practice to exercise real power and influence,[15] then the potential for tension and conflict with the Prime Minister cannot be discounted, particularly if they represent different political persuasions. Looked at in another way, the President may well have the capacity to at least hold up government measures which might be regarded as being extreme or against the spirit of the Constitution and its democratic nature. Much will depend on the extent to which the two office-holders can work together and cooperate.
The new Constitution entrenches broad guarantees of both personal rights and freedoms on the traditional western ‘Bill of Rights’ model, and also of certain economic, social and cultural rights and duties. To a certain extent, these rights and freedoms can be suspended during a declared state of emergency, but otherwise restrictions of these rights can only be imposed by law in order to safeguard other constitutionally protected rights or interests in cases clearly provided for in the Constitution.[16] The Constitution establishes East Timor as a secular state, with sovereignty expressed to reside in the people, with the Constitution as supreme law and with powers of constitutional revision being vested in the parliament. The rights entrenched in the Constitution, such as freedom of religion and belief, are given express constitutional protection within these limits. Any constitutional revision is required to respect the rights, freedoms and guarantees of citizens, thus giving them added constitutional protection.[17] In addition, international human rights law is given a form of direct application in the domestic law of the country as discussed below.
The new Constitution seeks to establish an independent national judiciary, the members of which are to be subject only to the Constitution and to the law. Judges, other than the President of the Supreme Court of Justice, are to be appointed by a Superior Council for the Judiciary and are to have some legal security of tenure. The Supreme Court has a guaranteed constitutional and electoral jurisdiction, including an anticipatory jurisdiction in the case of the legality or unconstitutionality of statutes or referenda.[18] The principle of the separation of powers is enshrined, although it cannot be said to be a complete form of separation.[19] Any constitutional revision must respect the independence of the courts.[20] The Office of Prosecutor-General, and prosecutors generally, are provided express constitutional recognition. Lawyers are also constitutionally recognised and given some guarantees.[21]
Significant effort has been directed into assisting East Timor to reestablish its system of justice. However, the time to do this has been limited, and questions may arise as to the competence and independence of the judiciary and the legal profession. Hopefully, those involved in the judicial process will be able to live up to the high expectations and the vital role expressed for them in the Constitution. Any serious failure to do so may well put at risk the whole exercise of establishing a democratic, independent state under the rule of law.
The new Constitution is also noteworthy in the extent to which it imports aspects of international law into the domestic legal system. That domestic system is required to adopt the general or customary principles of international law, and rules contained in international agreements to which East Timor is a party are to apply domestically and may override any other domestic rules.[22] Fundamental rights contained in the Constitution are to be interpreted in accordance with the Universal Declaration of Human Rights.[23] There is express provision for the national and international prosecution of acts committed between 1974 and 1999 that can be considered crimes against humanity, war crimes or acts of genocide.[24]
Such a close correspondence between international and domestic law may reflect, in part, the origins of East Timor as a nation that has undergone a United Nations authorised and supervised act of self-determination as well as subsequent United Nations involvement. However, in part it also reflects a contemporary acknowledgment of the realities of globalisation and of the ever increasing interaction between these two fields of law. This close correspondence is clearly consistent with a movement towards a ‘monist’ position in world law, as evidenced in the comparable terms of the Portuguese Constitution. This in turn indicates how sadly out of touch is the inherited common law ‘dualist’ position, a position still largely applied in Australia and some other common law countries.
[*] Graham Nicholson is former Senior Crown Counsel for the Northern Territory, barrister, and part time lecturer in law and Adjunct Professor at the Northern Territory University.© 2002 Graham Nicholson
[1] Linton, S., ‘Rising From the Ashes: Creation of a Viable Criminal Justice System in East Timo’, (2001) 25 MULR 5; McDonald, C. QC, ‘Out of the Ashes — A New Criminal Justice System for East Timor’, paper presented at the Int Society for the Reform of the Criminal Law, 30 August 2001, Canberra; ‘East Timor in Transition 1998–2000; An Australian Policy Challenge’, Department of Foreign Affairs and Trade, Canberra, 2001. See also several papers recently delivered at the ANZSIL International Law Weekend, ANU, Canberra, 14 June 2002.
[2] UNTAET Regulations for this purpose can be viewed on <www. austlii.edu.au/tp/legis/consol_reg/>.
[3] Constitution of the Democratic Republic of East Timor (hereafter called the Constitution), s.170.
[4] Constitution, s.169.
[5] Constitution, s.167.
[6] Constitution, s.168.
[7] Saunders, C., ‘People Power’, (1993) 2(1) Constitutional Centenary 15.
[8] Garran, Sir R.R., Prosper the Commonwealth, 1958, ch 8; Evans, R., Moore, C., Saunders K. and Jamison, B., Documenting Australia’s Federation; Our Future’s Past, 1997, pp.124-47.
[9] See various tabled papers of the Select Committee on Constitutional Development of the Legislative Assembly of the Northern Territory up to 1997, Report of the Standing Committee on Legal and Constitutional Affairs of the Legislative Assembly of the Northern Territory into Appropriate Measures to Facilitate Statehood, April 1999.
[10] Dale, W., The Modern Commonwealth, 1983, pp.107-8; McWhinney, E., Constitution Making: Principles, Process, Practice, 1981, p.134.
[11] Constitution, Part VI Title II.
[12] Constitution, Part III, Title II and s.107.
[13] Australian Section — Commission of Jurists: Commentary on the Draft Constitution proposed for East Timor by the Constituent Assembly, undated.
[14] For a comparison of the Portuguese Constitution on this point, see Hermet, G., Emerging from Dictatorship: The Role of the Constitution in Spain (1978) and Portugal (1976), in V. Bogdanor (ed.), Constitutions in Democratic Politics, 1988, Gower Publishing, pp.269-72, in which the author comments that the Portuguese Constitution generates instability and political uncertainty in this respect.
[15] It seems clear that President Gusmao regards himself as having an independent discretion in exercising his constitutional powers within the limits of the Constitution.
[17] Constitution, s.156.
[18] Constitution, part III, Title V.
[19] Constitution, s.69. Examples of overlap between the legislative, executive and judicial powers in the Constitution include the Presidential veto over legislation, Ministerial membership of the parliament and parliamentary ratification of treaties and conventions.
[20] Constitution, s.156.
[21] See ref 17.
[24] Constitution, s.160, but note the Commission for Reception, Truth and Reconciliation in East Timor.
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