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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