Hakone, Japan, 9-11 March 2005

Role of UN Peace Operations in Establishment of a Political Foundation for
Post-Conflicet Timor-Leste: A Critical Analysis

Sukehiro Hasegawa
Special Representative
Of the Secretary-General for Timor-Leste

It is my great pleasure and distinct honour to participate in this international conference on "UN and Japan: Political and Legal Analyses of UN Peace Activities," organised by the United Nations University and the
Faculty of Law of the Chuo University. Today, I take this opportunity to share my views on the contributions made and challenges faced by the United Nations Mission in East Timor (UNAMET), the United Nations Transitional
Administration in East Timor (UNTAET) and the United Nations Mission of Support in East Timor (UNMISET) in building a democratic state of Timor-Leste, as East Timor is now officially called.

The efforts of the UN trusteeship and peacekeeping in Timor-Leste have been continuing over the last five years since the violent destruction took place immediately after the Popular Consultation organised by UNAMET on 30
August 1999. A number of significant achievements have been made by UNTAET and UNMISET in fulfilment of their complex and unprecedented mandates in Timor-Leste.

Of particular significance of the many UNTAET achievements is the establishment of a secure environment and the maintenance of law and order, which finally afforded the East Timorese a peace of mind too long denied.
UNTAET also successfully organised free and fair elections, supported the drafting of a solid constitution, and the creation of a stable fiscal framework for a sustainable economy, including the finalisation of the Timor Sea Arrangement. Moreover, with the creation of the Second Transitional Government, UNTAET realised its goal of progressive delegation of administrational authority to Timorese institutions with a view to increased self-governance and ultimately the transition to independence. In large part, the institutions of an independent government now in place in Timor-Leste, were constructed by UNTAET aimed at 'Timorisation' of public
administration.

UN involvement in Timor-Leste has continued after the independence on 20 May 2002, fully integrated in nature, with significant traditional peacekeeping and police components through UNMISET. Over the course of next
two years, UNMISET has gradually handed over its executive authority for external and internal security to the Government of Timor-Leste, or more specifically F-FDTL and PNTL. Since then, the security situation in
Timor-Leste has been managed by the national security agencies with advisory and training provided by UN Security Force and UNPOL. I believe this positive outcome is a result of our concerted efforts in not only
maintaining peace and security but also training and nurturing the police and defence forces of Timor-Leste that fully respect the principle of democracy and human rights. During the first two years after the restoration of independence of Timor-Leste, UNMISET concentrated on continued capacity development of the police services, exercising its responsibilities for the maintenance of law and order and external security, and contributing to the development of skills and knowledge of Timorese counterparts in critical state institutions and performance of operational line functions in those areas where a lack of Timorese expertise could have had serious adverse impacts on peace and stability in the country. In the consolidation phase of UNMISET's mandate, the past nine months have focused on supporting the Government and three other state institutions, namely the Office of the Presidency, the National Parliament and the Judiciary of Timor-Leste building their institutional capacity and ensuring the smooth transition from peacekeeping to a sustainable development assistance framework.

Not all areas of the mandate of UN peacekeeping operations have, however, been implemented with equal success. There are a number of functions, services and mechanisms to self-sustaining democratic governance in Timor-Leste that can only be effectively undertaken through international assistance and support. The Security Council is actively engaged in a debate on whether the United Nations should maintain its presence in Timor-Leste after completion of UNMISET mandate on 20 May 2005 to ensure the gains that had been achieved are not lost and to address those areas where more progress has to be made. Meanwhile, some areas such as adherence to democratic principles of governance, the rule of law, respect for human rights, transparency and accountability in public administration, need to be accorded close institutional scrutiny and support from the UN system and the wider donor community in order to shore up weak institutions and firmly establish good governance practices. Indeed, Timor-Leste is facing a real turning point after the country became independent. The choices made by the Timorse people and the support and assistance extended by the international
community would determine whether Timor-Leste continues on its chosen path of democracy and development or if it lapses into stagnation and conflict.

To make a critical analysis of the role played by the UN, I will examine the key challenges faced by the UN peace operations in Timor-Leste particularly in building the foundation for democratic governance in Timor-Leste. Therese challenges are: (1) power sharing during the UNTAET transitional period; (2) establishment of a stable parliamentary democracy; (3) building of the institutional capacity for self-governance and establishment of an independent and professional judiciary; and (4) sensitivity in interpretation of mandates and promotion of national ownership by Timorese leaders.

A. Power Sharing during the UNTAET

UNTAET was mandated to establish itself as the de facto government of East Timor but was also charged with preparing the East Timorese for democratic self-government. The Transitional Administrator was seen by East Timorese as a facilitator of independence. The involvement of local leaders was, therefore, a pre-requisite for stability and sustainability of the UN administration. It was argued however that a separation of power and space
for opposition to the transitional administration was needed. While the Timorese leaders approved every regulation, they understandably resented not being fully part of the process of making the regulations. Resolution
1272 also stressed the need for the UN 'to consult and cooperate closely' with Timorese respectively, but on what basis are leaders to be chosen as a decision-makers in the absence of elections for the preparatory process of democratic self-government?

Unlike the situation in other UN peacekeeping missions, UNTAET engaged in a power-sharing experiment in three different phases. In the first phase, the Transitional Administration was the architect of a National Consultative Council (NCC). The UNTAET Regulation No. 1999/2 describes NCC as 'the primary mechanism through which the representatives of the people of East Timor shall actively participate in the decision making process [.] and through which the views, concerns, traditions and interests of the East Timorese people will be represented'. Thereafter, in the second phase, under the first administration (ETTA) a certain degree of power was handed over to the East Timorese components of the administration. Executive power was vested to certain extent in a mixed international/East Timorese Cabinet while the all-Timorese National Council (NC) exercised legislative responsibilities.

The NC acted as an independent legislature and established procedures for public hearings on key regulations. In the third phase, under the second administration (ETPA), UNTAET had a noticeably limited actual power. UNTAET remained ultimately responsible under its mandate, however there were a number of areas in which UNTAET may have moved forward with greater speed had it not made the decision to hand over a large extent of the day-to-day management and decision-making power to the East Timorese government. This meant in some instances where there were differing views or policies there were impasses and a reluctance to proceed on a basis which was not consensual unless absolutely necessary. It might be argued that UNTAET's policies could have emphasised local participation and capacity building without the effect of compromising the strategic objectives of democracy, effective administration, and rule of law and should have encouraged moving towards early elections to establish 'co-government'. UNTAET initially avoided dictating the shape of a permanent government in advance of a constitutional debate. UNTAET however accelerated the process of Timorisation in a fundamental and constructive manner by establishing a predominantly Timorese Government, albeit transitional, or interim in nature and other institutions of state.

This was evidenced by the all-Timorese National Council, and the Timorese-dominated Cabinet as well as by the all-Timorese judiciary. This is the significant conceptual and structural shift in the direction the mission was taking in the implementation of core requirement of its mandate that UNTAET assist the East Timorese in preparing - and transferring the skills necessary to them - for self-sufficient democratic government. Accordingly, the Transitional Administrator delegated, of course with the authorisation of the Secretary-General, many of his powers under Resolution 1272 to the Government structure. Indeed, the Government was entrusted with carrying out key elements of UNTAET's mandate.

While UNTAET built core executive and legislative structures and institutional capacities critical to the viability and political stability of East Timor, the capacity of the counterbalance to the power of the Government remained less developed. President Xanana Gusmão assumed his presidency in April 2002. The Constituent Assembly transformed itself into the National Parliament in May 2002. Indeed, there has been an imbalance of the institutional capacities and experiences of the four brunches of the state powers that would erode the effectiveness of the system of checks and balances among the state organs. It was therefore the primary task of
UNMISET promoting the balance of powers, which was essential to the country's democratisation and political stabilisation.

UNMISET has provided the state organs with international advisers assisting the promotion of their institutional capacity. For instance, significant support is currently being provided to the National Parliament for effective promulgation of legislation, developing parliamentary oversight and control functions, fostering multi-partisanship and good governance and constructive representation. The UNMISET advisors provided assistance to the President's Office in planning of activities and implementation of the Laws of the Superior Council for Defence and Security and other consultative bodies such as Council of State of the President of the Republic. More importantly, institutional strategies and preparation for the implementation of training programmes is currently being provided for the Secretariat and Administrative Support of the Councils.

Building a self-sufficient and sustainable democratic state should be based on significant local participation and a bottom-up approach. It is, nevertheless, difficult to rapidly create such democratic state within the governance vacuum in which there is virtually no experienced administrative elites, organised civil society, or history of self-rule with democratic norms. In my capacity as the Special Representative of the Secretary-General, I meet Prime Minister Mari Alkatiri weekly and President Xanana Gusmao regularly to discuss day-to-day political, legal and other issues to promote democratic governance in the country. What we agree to is the difficulty of instituting the culture of inclusive democracy in a country that has been in Portuguese colonial rule for more than four centuries and Indonesia occupation for nearly quarter of a century. Indeed, respect for basic civil and human rights and for the principle of democratic governance cannot be rooted overnight. It is a learning process and the UN would continue to assist the Government of Timor-Leste to achieve this end.

Let me move on to the second question that is: Could the UN have done much more to develop a healthier political environment for a multi-party democracy?

B. Establishment of a Stable Parliamentary Democracy

As noted earlier, one of the key success criterias for UNTAET was the conduct of entirely peaceful elections for Constituent Assembly. East Timorese were understandably concerned that the multi-party democratic elections would precipitate violence because of the memory of the bitter civil war of 1974-75. It was also an important step in the transition of East Timor to an independent and democratic country. Not only was there, for the first time, a representative body democratically elected by the people of East Timor, it also provided the foundations for an all-Timorese Second Transitional Government.

The elections brought new issues into public debate, issues such as freedom of expression, freedom of association, and freedom of movement. The election was therefore a dramatic triumph for the people of East Timor and a testament to the best means available for avoiding violence. Nevertheless, to this day, multi-party activities at the village level are rare and when they do occur, it is often in a climate of fear and/or suspicion. The Fretilin party has one key advantage over most other smaller parties in that it has a long historical tradition whereas the newer parties are fundamentally untested, and voters, so far, do not know what more they can offer. The question I would like to raise is: could the UN have done much more to develop a healthier political environment for a multi-party democracy?

Security Council Resolution 1338 mandated UNTAET as being responsible for the organization and conduct of the Constituent Assembly elections held on 20 August 2001. An Independent Electoral Commission (IEC) was created as the supreme and exclusive authority on electoral matters. Capacity building of East Timorese electoral staff was also a priority for the IEC. UNTAET's Civil Registration Unit conducted registration from 16 March to 23 June 2001 at 350 sites in each of East Timor's 65 sub-districts as well as at dozens of mobile sites. Individuals were categorised as either habitual or a long-term residents of East Timor. The result of the registration process showed the population of East Timor to be 737,811, excluding the refugees in West Timor. The IEC prepared its list of eligible voters based on the results of the registration process.

Sixteen political parties and the national and district independent candidates registered to participate in the election for the Constituent Assembly, of which 12 are currently represented in the National Parliament.
The Fretilin Party won 57 percent of the vote and the rest was split amongst the 11 other political parties. Fretilin has total of 54 out of 78 seats, consisting of 42 of the 65 national seats, and 12 of the 13 district seats. It is interesting to note how the electoral law favoured small parties reflecting the deliberate effort made by UNTAET leadership. If the law had been drafted to favour territorially based constituencies, as was argued for by many at the time, Fretilin's dominance would have been far greater. Minister of State Administration Ana Pessoa has told me that in the next national election, Fretilin would make sure through electoral laws that parties get seats in Parliament according to the actual number of votes obtained by them.

There has been constant criticism that members of the National Parliament do not fight for the interest of districts. When I visited Oeuccusi with the President a few months ago, people complained that the members of the Parliament from the district had paid little attention to the welfare of their people. A critical problem of having few constituency-based seats in the National Parliament is that members may feel little accountability to the voters. Another problem, some would argue, is that there are too many small parties that make little contribution to the life and work of the National Parliament. The lack of a strong, organised, coherent opposition is a serious problem for Timor-Leste, but it is largely an internal problem that the international community can do little to change it for fear of rightly being accused of meddling in internal affairs of Timor-Leste. The smaller political parties in Timor-Leste need time to mature and I hope some positive developments will emerge in the lead up to the next parliamentary elections.

Some political scientists may argue that the Constituent Assembly elections could not have produced a better result in terms of promoting stability during a transitional period. One party won a majority of votes, but only
just over 50 percent, so it has a clear mandate to rule thus bringing stability in the early years of a democracy without Timor-Leste becoming a "one party state." It is true that Fretilin, of course, dominates the Government, which it will use to its advantage, but then the party alone will have to be accountable to the people if it is unable to deliver basic services. Recent opinion polls suggest that electoral results would be similar now as in 2002, but this is far from assured if the population does not see economic improvement in their lives as increasingly felt by many marginalized groups. As in many post-conflict countries around the world, the mandate to govern is usually grabbed by education and shrewd political leaders who had spent many years in exile.

The question is how long people will tolerate them or voted them out of office unless these leaders become more accountable to the people and create conditions that are beneficial to the electorate. The usual conditions apply in Timor-Leste as elsewhere for ensuring that one party dominance does not prevail in the long term. A strong and independent media, alongside an open civil society, would help ensure multiple political views are registered in the public sphere. Strong parliamentary oversight of Government, and the establishment of statutory watchdog bodies are also the key to ensuring the Government is held accountable to the people. These are all areas were UNMISET and its follow-on mission need to focus on.

So far, I have examined the role played by the UN in developing political framework for the self-sustaining governance in Timor-Leste. I would now wish to examine the long-term sustainability of these structures. My third
question therefore is: has the UN built the institutional capacity of Timor-Leste for the sustainable governance?

C. Building the Institutional Capacity for Self-Governance

Two points need to be made in addressing this question. Firstly, the challenges posed by the lack of local capacity in Timor-Leste were almost unprecedented. The overnight exodus of Indonesian civil servants, and the
need to establish new institutions and systems virtually from scratch posed enormous challenges to the Timorese people and the international community assisting them to lay the basic foundation for self-governance. The UN was largely on terra incognita. Secondly, it is important to distinguish between functions carried out by UNTAET and UNMISET. UNTAET was very much a holding exercise, with UN international advisors charged with assisting nascent Timorese institutions to carry basic administrative services through the execution of line functions. With the formal handover of sovereignty to the Timorese authorities, a reduced number of UN advisors
were mandated to then carry forward this work and develop the institutions that had been established. This background is essential in order to contextualise an answer to the question of what might have been done better
to build the institutional capacity for the sustainable and self-sufficient governance of Timor-Leste.

It might be argued that the transition from one phase to another might have been better planned in terms of the profile of the advisors required. If the execution of line functions were a priority task in the first phase, this was supposed to be, at least on paper, less of a priority in the consolidation phase of UNMISET, which was intended to focus on the capacity building of Timorese institutions and their functionaries with a view to eventual handover. This shift in focus would logically have entailed a wholesale revamping of the corps of advisors since sound line function professional skills are not the same as skills in terms of capacity building of local institutions and their staff. The fact is, however, that decisions were taken that left most advisors in place during the transition. This is understandable given the invaluable knowledge that advisors built up over time in regard to their respective institutions, as well as the preference expressed by the institutions themselves for those that they were familiar with. Nevertheless, it is the case that professional expertise in terms of executing tasks is not coterminous with
being a good mentor or trainer. In addition, sometimes there was a need for many of the advisors to continue to carry out line functions which limited the time available to conduct training, even if the advisors in question had been equipped to do so in terms of experience with the development of training manuals and the most appropriate pedagogic skills for transmitting their skills and knowledge.

Secondly, a sounder understanding of the structural constraints that might come to impact negatively on the objective of a smooth 'exit', while leaving behind a critical mass of national capacity, might have led to a
redesign of both timelines and modus operandi. Foremost amongst these is a comprehensive assessment of the correct approach to take at a national level in terms of the appropriate mix of on-the-job and in house formal
training and structured medium-term formal specialised education required to address the capacity development bottleneck. One thinks specifically here of difficulties that continue to be faced by UNMISET legal advisors who, while tasked to transfer specialist skills to their 'counterparts', encounter intractable problems given the dearth of qualified counterparts, and the lack of a national legal education strategy and law faculty at the National University. One also wonders if a more timely recognition of the serious deficiencies in terms of the capacity of Timorese judicial sector actors in the UNTAET period might not have led to the earlier designing and
implementation of the existing Judicial Training Centre programme, which might have gone some way towards countering the current complete dependence on international judges, prosecutors and public defenders that currently exists, a situation likely now to prevail until early 2007.

The points I have made enjoy, of course, the advantage of hindsight, and should not be taken as criticism of decisions made and options chosen. If there is one key lesson to be drawn it is that of the immense challenges
faced by an Organisation entrusted at short notice with developing the national capacity of a new state which require formulation exercises that normally entail prolonged research before a plan of any sort, let alone
concrete actions, sees the light of day, and which is also hindered by the length of short-term extensions to the mandates it is allowed to grant to its operations.

Finally, let us consider the fourth question: how to creatively interpret mandates given under Chapter VII of the UN Charter so that genuine partnership can flourish between the national authorities and the UN? How to promote national ownership and a broad-based participatory decision-making in post-conflict societies where the wounds of the past have not yet healed and mutual suspicion and distrust are still the norm?

D. Genuine partnership between national authorities and the UN

The path-breaking efforts of late Sergio Vieira de Mello who established a National Consultative Council composed of Timorese leaders, followed by the first and second Transitional Governments, were taken forward under the able leadership of the first SRSG to an independent Timor-Leste, Ambassador Kamalesh Sharma. Ambassador Sharma instituted a practice of weekly meetings with Prime Minister Mari Alkatiri and at least once every fortnight with other leaders, notably President Gusmão, President of the National Parliament, Françisco 'Lu O'lo' Guterres and Foreign Minister José Ramos-Horta. These provided avenues for discussions over a wide and broad spectrum of issues, some of which while not explicitly related to the mandate of UNMISET, were nevertheless critical for the establishment of traditions, norms and practices in a young and nascent country. The
cultural sensitivity demonstrated by UNMISET, particularly towards the genuine and legitimate national aspirations, while endeavouring to positively influence decisions that might not have been in full conformity
with the highest standards of human rights and principled international relations, has been deeply appreciated by the Timorese leaders. PM Alkatiri has indicated that UNMISET senior leadership and staff members should be a model for other peacekeeping missions.

It is difficult to attribute developments to preventive diplomatic efforts, particularly in the near term, lest such efforts be impeded in the future. However, I would like to mention, as an example, some of the many positive
developments that occurred largely due to the advice of the UNMISET leadership and the constructive and open manner in which it was received by the leaders of Timor-Leste. On the first ever International Human Rights
Day commemorated in an independent Timor-Leste on 10 December 2002, the country ratified and then later acceded to a large number of human rights conventions and treaties. Since then, I have been continuing to encourage the authorities to now take their reporting obligations seriously and Timor-Leste would soon become the first pilot country to prepare a basic core document for all these reports. UNMISET is assisting the preparation of this document through expertise, training and hard data. The humane handling of Sri Lankan refugees who had drifted to Timor-Leste while on way to New Zealand was a credit to the young Timorese state, and I am proud, of the role that I played, under Sharma's leadership in making this possible, encouraging all concerned senior members of the Government to resolve their differing perspectives on this issue.

Similarly, UNMISET encouraged efforts by the Government and the Presidency to enhance the bilateral relationship between Indonesia and Timor-Leste. UNMISET participated in the first high level meeting between Indonesia and Timor-Leste in July 2002 that led to the establishment of a Joint Ministerial Commision between the two countries and has consistently assisted the efforts of both countries to finalise an agreement demarcating their land-border.

I can refer to several other joint initiatives of UNMISET and the Government, such as the Joint Needs Assessment Missions on Police and Justice Sectors, the workshops and seminars on international civilian
assistance and integrity, transparency and accountability, and efforts aimed at promotion and protection of all human rights. These may not have been subjects of traditional peacekeeping but nevertheless are critical for
any emerging democracy. They have to be approached in a spirit of partnership and cooperation, sympathy and understanding, advice and assistance. We may not have always succeeded in doing so, but where we did,
the country and its relationship with the United Nations was considerably strengthened.

Any post-conflict society carries old unhealed wounds and scars of the past. Generally, these societies are characterised, due to their historical experience, by mutual suspicion and distrust, rather than by a spirit of
conciliation, compromise and consensus that must be the hallmarks of a broad-based participatory democracy. Even after these wounds have healed, their scars continue to afflict daily relations in a variety of ways.

Realising the critical importance of promoting open communication, as an adjunct to building trust between the government and those governed, SRSG Sharma and I have encouraged Prime Minister Alkatiri to visit districts,
accompanied by the members of his Cabinet, to listen first-hand to the experiences of the people, their worries and concerns and their hopes and aspirations. This programme, known as the Open Governance initiative, was
commenced in January 2003, seven months after the beginning of the UNMISET mandate and has proved to be highly successful. The Government has visited ten districts so far and after covering the remaining three, proposes to commence on a second round. President Gusmão has also visited several sub-districts as an integral part of the Open Presidency programme and also hosted national dialogues on important topics, such as the condition of veterans, activities of the martial arts groups and the like.

Timor-Leste, for a country of its size and population, has been remarkably fortunate in having as its leaders a visionary President, a highly capable and motivated Prime Minister who can make the change and evolutionary
process possible, and a Foreign Minister who enjoys international renown and acceptance. UNMISET has encouraged these leaders to continue their balanced relationship so that their complementary competences can be utilised for the growth and development of Timor-Leste. I am happy to report that weekly meetings have been held over the last two and half years between the President and the Prime Minister with a view to harmonizing
their positions.

However, there is one important area, the media, that could have benefited more from UNMISET's assistance but it was difficult for UNMISET to play any major role. The dilemma of promoting free speech, while recognising that any incendiary, or false rumours, have a tendency to spread far more easily in post-conflict societies and could prove to be destabilising as was seen in Rwanda, is difficult to resolve. Having earlier served in Rwanda and Somalia, this is an experience that I have lived through before. During the remaining period of UNMISET mandate, I intend to foster the culture of transparency and accountability through proactive and professional media that can monitor and report the conduct of state institutions to the people.