‘Cut and Paste’ Constitution-Making in Timor-Leste

Abstract

When Timor-Leste (re)gained its independence in 2002, it appeared to be a triumph of international state building. In a relatively short period, a massive United Nations (UN)-run mission had purportedly built the institutions of a liberal democratic state. State building took place in a highly globalized context; there was a large UN presence as well as international non-governmental organizations, academics, journalists, and activists. In addition, many exiled Timorese leaders returned to play a role. While constitution making was central to state building, there are questions about the legitimacy, effectiveness, and stability of the Timor-Leste Constitution and the state institutions that it created. This article focuses on three aspects of the interplay between the global and local during the constitution-making process. First, it considers the relationship between the UN and Timorese elites, finding that the UN adopted a hands-off approach that created space for certain elites to dominate and politicize the process. These returning exiles engaged in ‘cut and paste’ constitution making, with much of the Timor-Leste Constitution based on the 1989 version of the Portuguese Constitution (modified to an extent by the 1990 Mozambican Constitution). Second, it analyses whether the constitution-making process was a true exercise of the constituent power of the Timorese people and concludes that the dominance of certain elites contributed to social division. Third, it discusses the significance of public participation, noting that minimal participation has meant that the Constitution does not reflect the views of most Timorese people. This is even though the principle of ‘popular sovereignty’ implies that, at least in states that aspire to be liberal democracies, people should be given the opportunity to participate in making their state’s Constitution. It concludes by arguing that the Timorese people missed the opportunity for their Constitution to define the political bond between them and embed state institutions in the local context.