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. References Cited Aucoin, Louis and Michele Brandt 2003 East Timor's Constitutional Passage to Independence. Paper prepared for the United States Institute of Peace, Project on Constitution-Making, Peace Building and National Reconciliation. Ms. The Carter Center 2000 Observing the 1999 Public Consultation Process in East Timor. Final Report. King, Dwight Y. 2001 Social Influences on Voting in the 2001 Constituent Assembly Elections in East Timor. Paper presented at the conference on East Timor in Transition: Past, Present and Future. Northern Illinois University, De Kalb. Kingsbury, Damien, ed. 2000 Guns and Ballot Boxes: East Timor's Vote for Independence. Victoria, Australia: Monash University, Monash Asia Institute. Lutz, Nancy 2003 Observation of the Constitution Drafting Process. Final Report for The Carter Center. Ms. Mubyarto, Loekman Soetrisno, Hudiyanto, Edhie Djatmiko, Ita Setiawati, and Agnes Mawarni 1991 East Timor: The Impact of Integration. An Indonesian Socio-Anthropological Study. Translated and Published by the Indonesia Resources and Information Program, Northcote, Australia. Scott, James C. 1990 Domination and the Arts of Resistance: Hidden Transcripts. New Haven: Yale University Press. 1985 Weapons of the Weak: Everyday Forms of Peasant Resistance. New Haven: Yale University Press. UNTAET 1986 A Report on the National Constitutional Consultation in East Timor June-July 2001. Constitutional Affairs Branch, Department of Political Affairs and Timor Sea, UNTAET (The United Nations Transitional Administration in East Timor). Walsh, Pat 1987 IRIP Foreword. In Mubyarto et al., East Timor: The Impact of Integration. Translated and published by the Indonesia Resources and Information Program, Northcote, Australia.