ABSTRACT
The importance of process On August 30, 1999 the people of Timor-Leste voted in a referendum to end the 24-year-long annexation to the Republic of Indonesia. This launched them on the path to statehood. Following the referendum, Timor-Leste engaged in two simultaneous political processes: the construction of the foundations of a new independent state and the definition of institutions and mechanisms for a democratic polity (Tansey 2009). A constitution was generally accepted as central to both. Recognition of a new political entity is contingent upon the existence of a legal framework which defines the main institutions and political mechanisms, and democracy cannot thrive without broad consensus on clear rules for the political game. These are elements which are normally enshrined in new constitutions that aspire to embody a real social contract. As Croissant states (Chapter 2, this volume), there has long been a link between modes of constitution-making, acceptance of the constitutional provisions by the citizenry, and the democratic quality of the regime that emerges. It follows that one critical variable on which a positive outcome depends is how the institutional process is shaped. Samuels (2006) identified four questions that may be used to analyze the significance of the procedures: (1) Are constitutions imposed top down or do they derive from negotiations among a variety of actors? (2) Is the process inclusive or restricted to only some stakeholders? (3) How well does the process represent the citizenry? and (4) how were citizens allowed to participate in the constitution-drafting? These considerations frame this attempt to evaluate how Timor-Leste’s constitution was drafted. They also relate to the degree of legitimacy which the
new constitution has achieved. Elster (1997) maintained that constitutional legitimacy may be sustained in three ways: “upstream legitimacy” if the body producing the charter was established in a legitimate way; “process legitimacy” if its deliberations were not subject to external pressure or limitation; and “downward legitimacy” if the end product was subject to a referendum or other form of public approval. Scrutinizing the constitution-drafting process in Timor-Leste against these benchmarks will illuminate how a democratic polity emerged in the first new nation of the twenty-first century. Samuels’ four issues stand out in studying the relationships between constitution-making and democracy. Two of them precede the drafting of a constitution, and are considered in detail in the survey of the roadmap to independence; the third, which pertains to the essence of that process, is only cursorily addressed here due to the dearth of sources available; and the last applies in assessing the importance of the new charter. This assessment also looks at another four dimensions of the constitution-making process that can only be evaluated ex post: the durability of the new constitution; temperance in the balance of powers it enshrines; how it affects performance of the new institutions; and the democratic nature not only of the constitution-making process itself but also of whether the rule of law is sustained. These will be considered in the final section of this chapter. Fareed Zakaria (2013) considers the first issue, the timing of constitution drafting, to be critical to the success of democratization. Retrieving a historical argument which postulates that the rule of law developed before adult universal suffrage (although recent developments analyzed by Miller (2013) suggest that there are alternative paths), Zakaria puts “paper power” ahead of “people power,” and adds:
It’s crucial that before the first elections, before politicians gain enormous legitimacy through the polls, a system is put in place that limits governmental power and protects individual liberty and the rights of minorities. . . . The focus should be more on constitutions, and less on elections.
