CONSTITUTIONALISM AS PUBLIC CULTURE IN EAST TIMOR
Paper presented at the Law and Society Association meetings, Pittsburgh, June 7, 2003.
Nancy M. Lutz
Department of Anthropology
Southern Illinois University – Edwardsville
nlutz@siue.edu
In conceptualizing this paper, my initial interest was in the process of holding public
consultations as part of a nation's constitutional drafting process. In the case of East
Timor, where I spent ten months observing the elections for a Constituent Assembly and
the process of constitutional drafting, public consultations were seen as critical for public
awareness and public ‘ownership' of the new nation's constitution. In a population where
up to 60% of adults are illiterate, and with a history of 400 years of Portuguese
colonialism, 25 years of Indonesian occupation, and three years of interim United
Nations administration, many national and international political advisors felt that public
consultations including substantive civic and political education would be the most
effective tool for integrating the East Timorese people into the political and constitutional
process. Consultation sessions, run at the village or sub-district level by local East
Timorese commissioners or members of the Constituent Assembly, would be largely oral
and visual in format, thus alleviating content and textual problems that could be faced by
a largely illiterate population.
Two sets of public constitutional consultations were held in East Timor. The first set
of consultations, organized by the United Nations in conjunction with or parallel to their
civic education program, was held from June 18 to July 14, 2001, before elections were
held for the Constituent Assembly. These were followed by a second set of consultations
from February 24 to March 2, 2002, organized by Constituent Assembly members and
facilitated by the United Nations, after a provisional draft of the constitution had been
completed and accepted by the Assembly. In the first set of consultations, East Timorese
villagers and other participants were informed about the purpose and structure of a
constitution, and commissioners were given a list of suggested constitutional content
areas for input and discussion. Content areas included such things as definitions of the
nation-state, the structure of government, human rights, citizenship, defense and security,
and procedures for holding a referendum (see UNTAET 2001). Results from these
consultations were compiled and presented to members of the Constituent Assembly in
September 2001. For the second set of consultations, copies of the draft constitution were
circulated at the sub-district level and small groups of Assembly members held hearings
in each sub-district to explain the constitution's content and to gather local-level
feedback and suggestions. These suggestions were compiled and presented to the full
Assembly in March 2002.
In neither the first nor the second set of consultations were the suggestions compiled
at the village and sub-district levels ever seriously considered by the Constituent
Assembly. Many Assembly members felt that because they had been democratically
elected, their presence in the Assembly was sufficient ‘popular consultation', and that
they had been given the authority to write the constitution as they saw fit. Others felt that
that the consultation processes were ‘too little, too late' to make meaningful contributions
and that a largely illiterate population had been insufficiently educated to understand the
constitutional technicalities at stake. Listening to many of the concerns and suggestions
expressed by East Timorese participants in the two sets of consultations, I also felt that
there was often a disconnect or lack of fit between the ‘aspirations of the people' and the
content of the constitution. In a report I wrote after the Assembly's approval of the
Constitution, I stated that, "observers suspected that the Assembly did not intend to make
any significant changes to the constitutional draft, and ultimately they did not. It should
also be noted, however, that many of the changes suggested by people in the districts
were more conservative than those in the constitutional draft. So it is perhaps to the
Assembly's credit that they were not swayed by public opinion on such critical issues to
a democracy as participation in public office, freedom of religion, or the separation of
Church and State" (Lutz 2003). Even as I wrote this, though, I was uncomfortable with
my analysis, although it was hard for me, as an American, to feel sympathy towards East
Timorese public demands for such things as a constitutionally mandated belief in God,
the inclusion and involvement of the Catholic Church in Government, or the requirement
that only native-born East Timorese be involved in government or public service.
Another analyst, commenting on constitutional suggestions put forth at the first set of
consultations (before the election of the Constituent Assembly), noted that, "the people
were quite clear in their expression on a few of the relevant topics. A clear majority
expressed a preference for either a presidential or a semi-presidential system of
government. They wanted a strong president who would act as commander-in-chief of
the armed forces and direct the country's foreign policy….They also demonstrated a
good understanding of human rights norms and strongly advocated their incorporation in
the Constitution, and they insisted that the amendment of the Constitution should require
some form of popular consultation, such as a referendum. Their response on many of the
other issues, [however], related very much to the concerns of their everyday life"
(Aucoin and Brandt 2003). The issues flagged here included such things as marriage,
family, polygamy, dowry practices, gambling, cock fighting, deforestation, protection of
people's rights with respect to land, and government assistance in the provision of
housing, clean water, health care and education (ibid.). While all of these were important
issues for legislation at some level, it was not clear, either to me or to members of the
Constituent Assembly, that they were relevant issues for inclusion in the Constitution.
So what was going on here? Were these just the "everyday concerns" of an illiterate
peasant population? Were the requests that I saw as undemocratic just the views of an
uneducated population who could not be expected to understand such subtleties and fine
points of democracy as the separation of Church and State? These would be the easy
answers, yet they did not feel right to me, having spent nearly fifteen years following the
East Timorese people's struggle for independence.
The East Timorese people are not politically unsophisticated. Whatever their literacy
rate in terms of reading and writing, politically they are extremely astute and not
unwilling to risk their lives for what they believe. They had survived a 24-year long
guerrilla struggle where even children risked their lives in clandestine activities and
people in all locations and at all levels were subject to multiple levels of informers and
intimidation. During the independence referendum in East Timor held by the United
Nations on August 30, 1999 (which the Indonesian government insisted on calling a
"popular consultation" and in which people were asked not to vote for or against
independence but for or against autonomy within the nation of Indonesia, a vote against
autonomy meaning a vote to "move towards independence"), record numbers of voters,
mostly illiterate, registered; voter turnout was nearly 99% despite death threats, beatings,
house burnings and threats of retaliation; and 78.5% of voters voted for independence
(see, for example, The Carter Center 2000 and Kingsbury, ed. 2000). Although people
were initially wary, before the Constituent Assembly elections, of multi-party politics
(multi-party politics commonly being seen as the reason for the "civil war" that occurred
in East Timor before Indonesia's invasion in 1975), reassurances from local political
leaders and the United Nations ultimately led to 16 different political parties contesting
the Assembly elections. In a complex process in which 75 of 88 Assembly seats were to
be elected proportionally from political party slates, and 13 seats by the election of single
representatives from each of the 13 districts, voters showed remarkable sophistication in
their voting patterns, often voting for candidates from different political parties at the
national and district levels, or spoiling their district ballot (but not their national ballot) if
their preferred political party had not fielded a candidate at the district level (see King
2002). Although a single party (Fretilin) won 55, or 62.5%, of the Assembly seats, they
fell short of the 60 seats or 2/3 majority needed for a controlling vote, and 12 of the 16
political parties that contested the elections won at least one seat each in the Constituent
Assembly. These were not the actions of politically uneducated voters. Furthermore,
those East Timorese who had gone to middle or secondary school, or who had been civil
servants during the Indonesian period, would have been well trained in the Indonesian
political ideology, Pancasila, and in the fundamental aspects of the Indonesian
Constitution.
It was considering what the East Timorese people might have learned during the
Indonesian period in terms of attitudes and ideas about the Indonesian Constitution, in
fact, that led me to reconsider the content of the ideas expressed during the East
Timorese constitutional consultations. A number of the suggestions or requests that
people made related directly to their knowledge or experience of the Indonesian political
structure. The request for a strong President, for example, could be seen as a reflection of
the only type of ‘democratic' system they had ever known. Although some might have
seen the Indonesian presidency, especially under President Suharto, as overly
authoritarian, in general the East Timorese people did not object to a strong President,
especially since they expected the popular guerrilla leader, Xanana Gusmao, to be elected
into that role. Many people preferred giving him more power, in fact, compared to
Parliament. People felt that there should be a strong and independent judiciary, but
having never experienced an independent judiciary under Indonesia, they were unclear
how a fully independent judiciary should be structured. And given the critical role the
Catholic Church had played in protecting people and in speaking out against injustices
under Indonesia, taking on an almost daringly political role despite an increasingly
conservative Pope and a dangerously repressive Indonesian military and civilian
government, it might be expected that people would want the Catholic Church to be
given formal recognition in the Constitution or even an advisory role in the structure of
Government.
More interesting to me were those suggestions that seemed ‘irrelevant' to the content
of a constitution. Issues of marriage, family, cockfighting or deforestation seemed
insufficiently ‘global' to be discussed together with treaty rights or the structure of
government. While it is of course possible that it was different villagers who discussed
cockfighting and treaty rights, it is also possible that what villagers were expressing went
deeper than the surface content of their statements. In a research study conducted by a
team of Indonesian anthropologists in 1989, at the height of the Indonesian period, the
researchers observed that, "one gets the strong impression that people are always afraid
and reluctant to speak openly but if they do have an opportunity to express their feelings
it relieves them somewhat of the burden they have carried for so long. When asked, many
farmers tell how things should be and not how they truly are" (Mubyarto et al. 1991: 21).
The Australian translators of this study into English noted that, "the research was
commissioned by the Bank of Indonesia and the government essentially to find out what
has made the East Timorese ‘uncooperative, apathetic and constantly suspicious'"
(Walsh 1991: viii). In his Foreword, Pat Walsh states, "in summary, the study's findings
are that the sources of alienation in East Timor can be traced to two major experiences,
namely military conflict and the exclusion of the East Timorese from meaningful
political and economic participation" (ibid: ix).
Taken together, these statements suggest a depth of political discourse that may be
more than what meets the ear. Statements such as "when asked, many farmers tell how
things should be and not how they truly are" (Mubyarto et al. 1991: 21) signal the
presence of what James Scott would call "hidden transcripts" of peasant resistance (see
Scott 1990, 1985). Normative statements, of how things should be, are also statements of
how things are not, a way of registering complaints or expressing injustice in an
environment in which direct criticism could be life threatening. ‘Speaking truth to power'
is especially deadly when the power addressed is that of the military, as it was in
Indonesian East Timor, and where ‘resisters' could be shot as ‘trouble-makers' or
‘guerrillas'. As Scott has argued, "hidden transcripts", "critique[s] of power spoken
behind the back[s] of the dominant" (Scott 1990: xii), "…[are] typically expressed
openly – albeit in disguised form. I suggest, along these lines, how we might interpret the
rumors, gossip, folktales, songs, gestures, jokes, and theater of the powerless as vehicles
by which, among other things, they insinuate a critique of power while hiding behind
anonymity or behind innocuous understandings of their conduct" (ibid: xiii).
Indirect statements, normative comments, and double entendre clearly fall within the
realm of political statements that Scott describes as "the infrapolitics of the powerless"
(ibid.), and each of the issues expressed by participants in the constitutional consultations
could be grouped into a larger areas of concern that were either unregulated during the
UN administration and thus existed in a legal vacuum, or that had been issues of injustice
or disempowerment during the Indonesian period. Even though the constitutional
consultations took place in a very different political context than that described by
Mubyarto et al. in 1989, and villagers in 2001-2002 had no need to fear for their lives,
old political habits die hard, and even in the new environment, villagers would not have
wanted to criticize a government that was only then being formed. They did, however,
wish to participate, and they had plenty of things that they wanted to say. The issues they
raised, therefore, were not irrelevant, but were a laundry list of social, political or
economic injustices to be dealt with by East Timor's new government. Furthermore,
while Assembly members and observers like myself may have seen these issues as too
particularistic to be included in the Constitution, the villagers themselves wanted the
issues resolved ‘at the highest level', thereby ‘solving them once and for all' and
guaranteeing a more equitable and just foundation for the new nation. A closer reading of
the "hidden transcripts" expressed during the constitutional consultations, therefore,
reveals that East Timorese villagers, despite their illiteracy, are indeed politically
sophisticated and may in fact have a better understanding of constitutionalism than many
of us might have expected.
Acknowledgements
I would like to thank The Carter Center, for whom I served as Field Office Director in
East Timor from May 2001 to March 2002. I would also like to thank the faculty,
administrators, and graduate school of Southern Illinois University – Edwardsville, who
have supported and often funded my research in East Timor since 1995. Finally, I would
like to thank the participants of the Symposium on East Timor's Constitution hosted by
the United States Institute of Peace, and especially Louis Aucoin, Michele Brandt,
Aderito de Jesus Soares and Jim Della-Giacoma, for stimulating discussions that
encouraged the development of ideas for this paper. Needless to say, however, none of
the above individuals or institutions is responsible for the content of this paper, and
certainly not for its errors or inadequacies.
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