The Democratic Republic of Timor-Leste is an island country located in Southeast Asia. A former Portuguese colony, it covers 15,000 square kilometres of the eastern half of the island of Timor. The western half is occupied by the Indonesian province of Nusa Tenggara Timur. On the north, Timor-Leste is bordered by the Banda Sea and the Ombai Strait and on the south by the Timor Sea which separates it from Australia. The country has over 1 million people, 28% of whom live in urban areas. The capital of Dili is home to over 160,000 people. The population is mainly composed of Austronesian (Malayo-Polynesian) and Papuan peoples, though there is a small Chinese minority. Its legacy as a Portuguese colony has provided it with its national language of Portuguese and a large Roman Catholic majority, though there are small Muslim and Protestant minorities.

Constitutional history

The Portuguese arrived on the island in the 16th century, looking for a stopping point for their trade in the East Indies. Despite a Dutch claim on the western half of Timor, the Portuguese managed to maintain their hold on the eastern half right up to the period following World War II. It was not until 1975, when a new socialist, anti-imperial government took power in Portugal, that the road was cleared for independence. On 28 November 1975, the revolutionary Fretilin resistance movement, led by the popular Kay Rala Xanana Gusmão, declared East Timor’s independence, but the Indonesians invaded on 7 December and forcibly took control of the island. This led to a long and brutal guerrilla war that followed over the next several decades.

In 1998, Indonesian President Suharto was forced to resign due to internal political pressure resulting from the Asian financial crisis, which led to the appointment of his Vice-President B.J. Habibie as his replacement. Habibie allowed more political autonomy for the region, but it was a tripartite agreement between Indonesia, Portugal, and the United Nations reached on 5 May 1999 that marked the real turning point for East Timorese independence. It was agreed that an independence referendum would be held under the supervision of the United Nations in which the people themselves would be able to accept or reject a plan of increased autonomy under the Indonesian flag. If the people rejected this plan, it was agreed that the United Nations would assume responsibility for the territory until it could transition to full independence. In August 1999, the referendum resulted in a more than 75% vote in favour of independence. As a result, the United Nations set up a transitional government to prepare a constitution, as an international peace keeping force fought to quell violent protests that had followed the vote.

The constitution building process was slowed, however, because the United Nations did not have a concrete plan for the formation of an independent East Timor. It was not until April 2000 that the Security Council began talking about a state-building plan that included the creation of a constitution. The shadow Timorese government, led by Gusmão, was, however, already discussing this issue. Many of the former independence leaders were members of this group, called the Conselho Nacional da Resistência Timorense (CNRT), which was often called upon to advise the United Nations government. The CNRT had already met in August 1998 to discuss the development of the country post-independence, including the drafting of a constitution, and they met twice more in 1999 and 2000 to talk about the creation of a constitutional convention. Most were in favour of a full public consultation process and stressed the importance of public participation, but the United Nations decided that an elected 88-member constituent assembly would draft the new constitution within 90 days, with the option of transforming itself into the first parliament. The constituent assembly was sworn in on 15 September 2001, and by 22 March 2002, the nation’s first constitution went into effect. Gusmão was elected the nation’s first President.

2002 Constitution

The 2002 Constitution of Timor-Leste is fairly long, outlining not only the structure of government, but also the social goals of the new nation and the rights of its citizens. It begins with a history of the nation’s struggle for independence and the need to build a democratic and independent nation based on the rule of law. It links its recognition of fundamental rights to the UN Universal Declaration of Human Rights passed in 1948 following the Second World War, which includes protections for the right to life, freedom, security, and personal integrity, as well as equal protection before the law for all races, genders, and religions. The Constitution divides the power of the government between the President, the Government, the Parliament, and the Courts.

Executive branch

The President of Timor-Leste is the Head of State and the Chief of the Armed Forces. He is elected by a direct vote for a term of five years and is re-eligible once. The President does have some duties relating to the legislative function of government, including the promulgation of statutes, the vetoing of bills, and the ratification of treaties. He appoints as Prime Minister the candidate designated by parliament. He may also request that the Supreme Court hear a constitutional question and submit matters to the people by referendum. As Commander in Chief, the President may declare war and peace with the consultation and authorization of Parliament, and also maintains the traditional presidential powers of granting pardons and honorary awards. The President is assisted by a Council of State, which consists of former Presidents, the President of the Parliament, the Prime Minister, five members elected by Parliament, and five members appointed by the President himself. The Council advises the President on the dissolution of Parliament and the Government, as well as the declaration of war and peace. The Government is made up of the Prime Minister, Ministers, and Secretaries of State. It is the task of the Government to execute the laws and policy of the nation.

Legislative branch

The Constitution vests the legislative power in a unicameral Parliament. The Parliament is comprised of 52 to 65 members elected by a direct vote to 5 year terms. It is the duty of the Parliament to pass laws, though the Constitution is silent on the procedural rules for this process. The Parliament may authorize the Government to regulate civil and criminal procedure, as well as the organization of the judiciary. Also, the Parliament addresses the banking system, political parties, tax and budgetary policy, the environment, communications, military and civil service, and the requisition of lands for public use. It also has the ability to pass a vote of no confidence in the Government on the proposal of at least a quarter of the members of Parliament.

Judicial branch

The Judicial Branch is comprised of a Supreme Court, the Administrative Courts, Military Courts, and other courts as established by law. The Supreme Court, whose jurisdiction covers matters of judicial, constitutional, and electoral concern, is at the apex of the court system. Justices of the Supreme Court are, apart from one member chosen by the Parliament, appointed by the Superior Council for the Judiciary. This Council is responsible for overseeing the conduct of the judges of all the courts, with the power to promote, appoint, and transfer judges at their discretion. There are five members (including the President) of this Council, each chosen by the President from among the Supreme Court Justices, one member appointed by the President, one member elected by Parliament, one member designated by the Government, and one judge chosen by his peers from the courts of law. The independence of the judiciary is maintained by the provision which makes judges irremovable. This means that they may not be suspended, retired, or removed from office. The Judicial Branch also has an Ombudsman, an independent body charged with hearing public complaints against the government or its officials. The Ombudsman is appointed by the Parliament to a 4 year term.

Constitutional Challenges

The judiciary of Timor-Leste has made significant advances in the creation of a Timorese civil and criminal code, as well as the training of judges, prosecutors, and public defenders. However, it has also been experiencing some difficulties in other areas. Recent cases, most notably one involving the burning of a school in Becora, have been blocked or hindered by government prohibition of investigation, ignoring the constitutionally mandated separation of powers. In addition, controversy surrounds the President’s pardon power. Some accuse the President of using the power too often and too broadly without considering the advice of the rest of government. These critics are calling for laws clearly enumerating this power and its limits in order to further guarantee the integrity of the legal system and provide more transparency. The Constitution guarantees every citizen the power to petition the courts directly on constitutional grounds, but this article is being ignored in practice and the courts refuse to accept public complaints. Other issues surround the creation of laws, which are often drafted without the support of related studies or research. Critics argue that laws are being modelled on international legislation without taking into account the actual conditions of Timor-Leste.

System of Government under 2002 Constitution

Branch Hierarchy Appointment Powers Removal

Timeline

1600s Portuguese establish a trading colony on the island of Timor 1749 Island spilt between the Dutch in the west and the Portuguese in the east 1942 Japanese invade the island for use as World War II air and naval base 1974 Following a domestic revolution, Portugal voluntarily relinquishes its colonies, including East Timor 1975 Soon after the Timorese revolutionary Fretilin group declares East Timor’s independence, Indonesia invades, triggering a guerrilla war 1991 Santa Cruz Cemetery massacre sees Indonesian troops firing on a crowd mourning the death of a Timorese revolutionary 1996 Resistance leaders José Ramos-Horta and Bishop Carlos Belo win the Nobel Peace Prize for their efforts to raise international awareness of the Timorese independence struggle 1998 Replacement of Indonesian President Suharto by B.J. Habibie who promises more autonomy for East Timor May 1999 Portugal, Indonesia, and the United Nations agree to allow East Timor to vote for independence in a referendum which passed by an overwhelming majority, leading to violent protests and the arrival of a UN peacekeeping force August 2001 Elections for the Constituent Assembly result in a Fretilin majority 22 March 2002 New Constitution adopted, Gusmão becomes President

Bibliography

• United States. CIA World Factbook: East Timor. , 2011. Web. 8 Jul 2011.
• "East Timor Country Profile." 07/02/2011. BBC News. Web. 8 Jul 2011.
• United States Department of State. Background Note: Timor-Leste. , 2011. Web. 8 Jul 2011.
• Timor-Leste. Constitution of the Democratic Republic of Timor-Leste. , Web. 8 Jul 2011.
• Maddex, Robert L. Constitutions of the World. 3rd ed. Washington, D.C.: CQ Press, 2008. Print.
• Judicial System Monitoring Program. JSMP’s Observations on Progress Achieved to Date and Challenges Facing the Legal System in Timor Leste. 2010. Web. 20 Jul 2011.
• Judicial System Monitoring Program. Presidential Pardons and Commutation of Sentences: The Need for Regulation and Clarity. 2010. Web. 20 Jul 2011.