The Imperative of Local Ownership in Establishing
the Rule of Law
A Case Comparison Between Timor Leste and Rwanda.
Ms. Klaske de Vries Grote Leliestraat 7b 9712 SM Groningen Tel. 06- 3098 8385 Student number 1468286 Supervisor: Dr. A.J. Zwitter (Assistant Professor)
Content
ABBREVIATIONS ... 4
PREFACE ... 5
INTRODUCTION ... 6
CHAPTER 1. LOCAL OWNERSHIP IN ESTABLISHING THE RULE OF LAW ... 8
§1.THE CONCEPT OF THE RULE OF LAW ... 8
§1.1 Demarcations of the Concept ... 8
§1.1.1 International versus National ... 8
§1.1.2 Formal versus Substantial ... 9
§1.2 Working Definition of the Rule of Law ... 10
§1.2.1 Legal Certainty ... 10
§1.2.2 Supremacy of Law ... 11
§1.2.3 Separation of Powers ... 12
§1.2.4 Equality Before the Law ... 13
§1.3 Measurement of the Rule of Law ... 13
§2.THE CONCEPT OF LOCAL OWNERSHIP IN ESTABLISHING THE RULE OF LAW ... 14
§2.1 The Concept of Local Ownership ... 14
§2.1.1 Local Ownership as a Bottom Up Approach ... 15
§2.1.2 Sustainability of the Rule of Law Measured by Local Ownership of the Population ... 16
§3.HYPOTHESIS AND METHODOLOGY ... 16
CHAPTER 2. ANALYZING LOCAL OWNERSHIP IN TIMOR LESTE AND RWANDA ... 19
§1.LOCAL OWNERSHIP OF THE POPULATION IN TIMOR LESTE ... 19
§1.1 A Brief History of the Establishment of a Donor Mission ... 19
§1.2 A Local Ownership Analysis of the Judiciary and the Police Forces in Timor Leste ... 20
§1.2.1 Responsiveness ... 21
§1.2.2 Consultation ... 23
§1.2.3 Participation ... 25
§1.2.4 Accountability ... 26
§1.2.5 Control and Sovereignty ... 28
§2.ANALYZING LOCAL OWNERSHIP IN ESTABLISHING THE RULE OF LAW IN RWANDA ... 28
§2.1 An Introduction to the Alternative Justice Initiatives in Post-Conflict Rwanda ... 28
§2.2 A Local Ownership Analysis of the Judiciary and the Police Forces in Rwanda ... 30
§2.2.1 Responsiveness ... 30
§2.2.2 Consultation ... 33
§2.2.3 Participation ... 34
§2.2.4 Accountability ... 36
§2.2.5 Control and Sovereignty ... 37
§3.LEGISLATION IN TIMOR LESTE AND RWANDA:TOP DOWN ... 38
§3.1 The Legislation Applied in Timor Leste after Conflict ... 38
§3.2 The Legislation Applied in Rwanda after Conflict ... 39
CHAPTER 3. THE IMPACT OF LOCAL OWNERSHIP ON THE RULE OF LAW ... 41
§1.EFFECTS OF THE DEGREE OF LOCAL OWNERSHIP ON THE RULE OF LAW IN TIMOR LESTE ... 41
§1.1 Legal Certainty ... 41
§1.1.1 Substantive Legal Certainty ... 41
§1.1.2 Formal Legal Certainty ... 42
§1.2 Supremacy of Law ... 43
§1.2.1 A Highly Centralized Decision Making Process ... 43
§1.2.2 A Privileged Role for the CNRT ... 43
§1.3 Separation of Powers... 44
§1.4 Equality Before the Law ... 45
§2.EFFECTS OF THE DEGREE OF LOCAL OWNERSHIP ON THE RULE OF LAW IN RWANDA ... 46
§2.1 Legal Certainty ... 47
§2.1.1 Substantive Legal Certainty ... 47
§2.1.2 Formal Legal Certainty ... 48
§2.2 Supremacy of Law ... 49
§2.3 Separation of Powers... 50
CHAPTER 4. RESULTS FROM TWO DIFFERENT CASE STUDIES: A COMPARISON ... 53
§1.COMPARISON OF THE LEVELS OF LOCAL OWNERSHIP OF CIVIL SOCIETIES IN TIMOR LESTE AND RWANDA... 53 §2.COMPARISON OF THE IMPACT OF LOCAL OWNERSHIP ON THE RULE OF LAW IN TIMOR LESTE AND RWANDA .. 55 §3.IMPLICATIONS OF THE RESULTS ... 57
Abbreviations
ACHPR African Charter on Human and Peoples‟ Right
ADR Alternative Dispute Resolution
CAVR Commission for Reception, Truth and Reconciliation
CNRT National Timorese Resistance Council/ Conselho Nacional de Resistencia Timorensa
CNRT National Congress for Timorese Reconstruction
CPA Comprehensive Peace Agreement
ECHR European Convention of Human Rights
ETNC East Timorese National Council
FALINTIL Forças Armadas da Libertação Nacional de Timor-Leste
FRETILIN Frente Revolucionária de Timor Leste Independente
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
JSMP Judicial System Monitoring Programme
LDF Local Defence Force
NCC National Consultative Council
NURC National Unity and Reconciliation Commission
NGT National Genocide Trials
PNTL Policia Nacional de Timor Leste
SCU Serious Crimes Unit
RDR Rassemblement Républicain pour la Démocratie au Rwanda/ Republican Rally for
Democracy in Rwanda
RNP Rwanda National Police
RPF Rwandese Patriotic Front
TLPS Timor Leste Police Service
UN OIOS UN Office of Internal Oversight Services
UNAMET United Nations Mission in East Timor
UN CivPol United Nations Civil Police
UNMISET United Nations Mission of Support in East Timor
UNMIT United Nations Integrated Mission in East Timor
UNTAET United Nations Transitional Administration in East Timor
Preface
In this thesis I have sought to link important themes in order to create new concepts and ideas. Research in the field of conflict and law and order is a challenge for me. Therefore, I consider the writing of a master‟s thesis to be a unique opportunity to improve my knowledge on these issues. This thesis has given me the opportunity to inquire deeply into the ideas behind post-conflict mechanisms. Moreover, the themes addressed in this thesis fit perfectly with my interests as a student studying International Organizations and International Relations (IO/IR) and International and European Law at the University of Groningen.
In the process of writing this thesis, many people helped me to rethink my concepts and hypothesis. First of all, I would like to thank my supervisor Andrej J. Zwitter1 for guiding me through the process of setting up research and analyzing and interpreting the results. Zwitter has always been very helpful. In addition, the several colloquiums I participate in were particularly supportive. This thesis has been vastly improved by the comments, criticisms and new inspirations provided by these colloquiums.
I hope that this thesis will provide new inspiration for others.
1
Introduction
“Building capacities for peace requires that we include existing local knowledge and expertise and contextualize our interventions not in terms of giving local actors prescriptions but rather in strengthening their capacities to carry on the peace building work themselves. There is no better person to build sustainable peace than the communities that are directly affected by violence.”2
Establishing the rule of law is increasingly seen as part of post-conflict reconstruction and as a condition for stability and order. During the United Nations World Summit in 2005, member states recognized the need for universal adherence to and implementation of the rule of law at both national and international levels.3 The importance of a sustainable rule of law has been emphasized, because it results inter alia in a more stable domestic order and a lower level of violence.4 Next to the importance of the rule of law, the value of involving local actors has been increasingly acknowledged since the mid 1990‟s.5
The quotation above presents one of the conclusions drawn from a survey executed among different civil society organizations, which served as an input to a global meeting on peace building and state building in Timor Leste on 9 and 10 April 2010. As is illustrated clearly in the quotation, these organizations advocate more involvement of the local population, or in other words, more local ownership in post-conflict processes. However, there is ongoing discussion on whether and how to involve the local population in a post-conflict situation, as demonstrated by the different approaches applied in Timor Leste and Rwanda.
Timor Leste has a history of occupation and colonization. After declaring Indonesia‟s independence, the United Nations took over the administration and tried to establish law and order in the country. In Rwanda, after the genocide in 1994, different mechanisms were set up. International initiatives were created to maintain justice, such as the International Criminal Tribunal for Rwanda (ICTR). Internal initiatives were also established, such as the Gacaca courts. Both countries‟ circumstances involve a conflict situation, after which it was necessary to establish and maintain law and order. According to the World Governance Indicators of the World Bank, Timor Leste has a low sustainability of the rule of law, whereas in Rwanda there is a gradual upward trend with regard to the sustainability of the rule of law.6 This present study examines whether these differences in the rule of law can be explained by the different levels of local ownership in setting up the judiciary, legislation and police forces. These countries are outstanding case studies for the purpose of answering the question of whether local ownership is a prerequisite for a sustainable rule of law. The research question in this study is therefore to what extent is local ownership by the local population a determinant factor in establishing
2
Interpeace, Voices of Civil Society Organizations on Peace Building and State Building (Background Paper for the International Dialogue on Peace Building and State Building, 2010), 7. Available at the website http://www.laohamutuk.org/econ/10TLDPM/IDPBSB-CSO.pdf.
3
United Nations, World Summit Outcome Document (UN Doc. A/RES/60, 2005). Available at http://www.un.org/summit 2005, para.134.
4
Joris Voorhoeve, Peace Building after Violent Conflict (Amsterdam: WRR Scientific Council for Government Policy, 2007), 94.
5
Hannah Reich, “Local Ownership” in Conflict Transformation Projects Partnership, Participation or Patronage? Berghof Occasional Paper, No.27 (Berlin: Berghof Research Center for Constructive Conflict Management, 2006), 5.
6
and maintaining the rule of law after a conflict situation. The research is based on a comparative
case-based research method, in which the dependent variable is the impact of local ownership and the independent variable is the rule of law.
This study consists of three parts, namely the theoretical framework, the analysis, and the interpretation and discussion of results. In the first chapter the theoretical implications of local ownership on the rule of law will be outlined. The way the concepts are defined in this chapter is of importance for the analysis section. Chapter two presents an analysis of the local ownership in both Timor Leste and Rwanda. Chapter three addresses the impact of local ownership on the rule of law in both countries. Finally, in chapter four a comparison will be made between the situations of the two countries. The interaction between local ownership and the rule of law is one striking result from this comparison.
Conceptual clarity can facilitate the understanding of the impact of local ownership. Therefore, a reflection is given on the interrelation between the rule of law and local ownership. In most studies, local governmental actors and the local population are both regarded as falling under the term of local owners, and the internal actors are all lumped together. In this study a different approach is used. The local population remains often underexposed, although these groups have important and useful local knowledge and experience. Most of all, these are the people who have to build up the society again after a conflict. Therefore, the focus in this study will be on the local ownership of the local population.
Chapter 1. Local Ownership in Establishing the Rule of Law
In this chapter a reflection will be given on the interrelation between the concepts of the rule of law and local ownership. It will be discussed how these concepts and their interrelation can be used to understand and construct a method for establishing an effective rule of law system. Thereby it focuses on the top down and bottom up approaches that underpin the main rule of law debates. The opening paragraph on the rule of law provides essential introductory information about how to define the concept. After which the concepts of local ownership and the local population are further discussed. Finally, the sustainability of the rule of law measured by local ownership of the local population will be outlined.
§1. The Concept of the Rule of Law
Thomas Carothers states that one cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world‟s troubles.7
Establishing the rule of law is increasingly seen as part of post conflict reconstruction and as a condition for stability and order. However, a clear base line definition of what is meant by the rule of law does not exist. In resolution A/Res/61/39 the Secretary General was requested to seek the views of the Member States on the rule of law. This led to resolution A/62/121. Although the views differed, they also had some principles in common. This part will briefly discuss these minimum common understandings which will be used to define the concept of the rule of law.
§1.1 Demarcations of the Concept
Before defining the rule of law a few demarcations of the concept will be made. First of all a distinction can be made between the rule of law activities at the international and national level. Second, a distinction can be made between substantive and formal theories.
§1.1.1 International versus National
The rule of law at the international level forms an idealized reference point in calling for an international order predicated upon the performance of international law principles.8 This means for example that the activities at the international level relate to the Charter of the UN, international treaties and international disputes resolution mechanisms.9 Rule of law activities at the national level are more related to setting up justice and law mechanisms, implementing legal reforms, strengthening the administrative institutions and to capacity building.10 This research will mainly focus on the establishment of the rule of law at the
7
Thomas Carothers, “The Rule of Law Revival,” Foreign Affairs 77, no. 4 (1998): 95.
8
Bruce Broomhall, International Justice and the International Criminal Court. Between Sovereignty and the Rule of Law (New York: Oxford University Press, 2003), 53.
9
United Nations, The Rule of Law at the National and International Level. Uniting our Strengths: Enhancing United
Nations Support for the Rule of Law (Report of the Secretary General A/61/636 S/2006/980, 2006). Available at
http://www.unrol.org/files/2006%20Report.pdf, 13.
10
national level, because it will analyze the degree of local ownership of the population in establishing the rule of law.
§1.1.2 Formal versus Substantial
There is often a distinction made between substantive and formal theories or, as Simon Chesterman calls them, thin and thick theories.11
Formal theories fall within the positivist school. The central idea within this movement is that all knowledge is scientific and measurable. Formal theories embrace the idea that the content of the law is separate from the procedural requirements of laws, such as generality, clarity, stability and prospective application.12 A formal notion of the rule is not about whether the content of the rule of law is good or bad, but about whether the formal requirements of the rule of law were met.13 It becomes clear that legal concepts can have different degrees of definiteness and formal theories are more definitive than substantive.14 Because they are about formal requirements of law and not per se about the content, we can call them thin theories.
Substantive theories of the rule of law fall within the anti-positivist school. They are about ideals and substantive notions of justice and require a certain content of the law, such as conformity with moral principles.15 A good example of a substantive notion of the rule of law can be found in a report of the Secretary General about this subject. In this report the former Secretary General Kofi Annan argues that the rule of law should be in accordance with international human rights standards and norms.16 Because substantive theories go further than formal theories and include content specifications, we can call them thick theories.17
Formal and substantive theories of the rule of law are not mutual exclusive. This has also been recognized by Brian Z. Tamanaha. He argues that substantive theories endorse the idea that the rule of law has formal elements. In addition formal notions of the rule of law have substantive implications.18 Furthermore, a substantive notion about what law is, is required for the establishment of formal laws. The definition used in this essay does therefore not necessarily fall within the categories of substantive or formal theories. A definition of the rule of law which both includes substantive as formal elements is used in this thesis.
11
Simon Chesterman, “An International Rule of Law?,” American Journal of Comparative Law 56, no. 2 (2008): 12-13.
12
Kirsten Boon, “Legislative Reform in Post Conflict Zones: Just Post Bellum and the Contemporary Occupant‟s Law Making Powers”, McGill Law Journal 50 (2005), 293.
13
Brian Z. Tamanaha, On the Rule of Law. History, Politics and Theory (Cambridge: Cambridge University Press, 2004), 91-92.
14
Philip Soper, “On the Relationship between Form and Substance in Law,” Ratio Juris 20, no.1 (2007) 58-59.
15
Chesterman, “An International Rule of Law,” 12-13.
16
Boon, “Legislative Reform in Post Conflict Zones,” 293.
17
Tamanaha, On the Rule of Law, 91-92.
18
§1.2 Working Definition of the Rule of Law
This study will make use of the smallest agreed denominator of the rule of law. Therefore, only the four common elements which can be derived from resolution A/62/121 will be used, namely legal certainty, supremacy of law, separation of powers and equality.19
§1.2.1 Legal Certainty
The idea of legal certainty as part of the rule of law has been acknowledged.20 The definition of legal certainty can be derived from state declarations and case law. From the different views of states it becomes manifest that legal certainty means clear and foreseeable rules and fair, effective and transparent procedures. This principle of legal certainty will help the government and the governed to learn the limits of the rules applicable to them and also the consequences of violating them.21
This description corresponds with international case law. The principle of legal certainty has inter alia been recognized as one of the fundamental principles of community law in the European Union. According to settled case law the principle of legal certainty requires that rules should be clear and precise, to make it possible for individuals to ascertain what their rights and obligations are.22 In addition, in the case concerning the dispute between Costa Rica and Nicaragua regarding navigational and related rights, the International Court of Justice (ICJ) emphasized that legal certainty and transparency are the surest means to avoid arbitrariness and regulations should therefore be adopted with a proper legal basis and communicated to those to which they are intended to apply.23 In this study therefore the notion of legal certainty as clear and foreseeable rules which are communicated to the local population, shall be used.
As explained earlier, a definition of the rule of law includes both substantive as well as formal elements. This also applies to legal certainty. Formal legal certainty implies the idea that legal decisions and behaviour of officials should be predictable. Individuals subject to political power must have the possibility of predicting the use of power by the state and acting according to their expectations.24 Substantive legal certainty refers to the acceptability of law by the local population.25 The substantive aspect of legal certainty demands that the judicial decisions and actions must be substantially right, which
19
These common elements of the rule of law have been accepted in other concepts of the rule of law, although differently defined and applied. For example in the articles: Simon Chesterman, “An International Rule of Law?,” American Journal
of Comparative Law 56, no. 2 (2008): 32-37 and Andrej J. Zwitter, “The Rule of Law in Times of Crisis.
Legal-Philosophical Considerations on the States of Emergency,” Archives (forthcoming): 16-18.
20
Neil MacCormick, Rhetoric and the Rule of Law. A Theory of Legal Reasoning (Oxford: Oxford University Press, 2005), 238.
21
United Nations, The Rule of Law at the National and International Levels: Comments and Information Received from
Governments (Report of the Secretary General, document A/62/121, 2007). Available at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N07/422/35/PDF/N0742235.pdf?OpenElement.
22
European Court of Justice, Afton Chemical (C-343/09), July 8, 2010, para. 79. European Court of Justice, European
Commission v. Grand Duchy of Luxembourg (C-526-08), June 29, 2010, para. 43. European Court of Justice, Kingdom of Belgium v. Commission of the European Communities (C-110/03), December 16, 2004, para. 30.
23
International Court of Justice, Costa Rica v. Nicaragua. The Right of Free Navigation (CR 2009/6), Public Sitting March 9, 2009, para. 23.
24
Ricardo García Manrique, “Autonomy and the Rule of Law,” Ratio Juris 20, no. 2 (2007): 281.
25
is called the demand of acceptability of the local population.26 In this research the two elements of legal certainty will be analyzed, namely:
The concept of legal certainty concept of legal certainty Formal legal certainty Predictability
Substantive legal certainty Acceptability
Figure 1. Explanations of legal certainty.27
In order to achieve legal certainty, there must be a compromise between predictability of legal decisions and their acceptability, to ensure that an individual can plan his life according his or her expectations.28 Thus on the one hand, the rules and decisions must be consistent with the existing legal system in order to create predictability. Here the formal requirements of the rule of law come into play. A consistent and rational application of the law promotes in this sense legal certainty. On the other hand, decisions and rules are only justified when individuals can accept them as justified decisions. Therefore, a compromise between predictability and acceptability is needed, in order to achieve legal certainty. That there is a close connection between legal certainty and expectations has also been emphasized by Paul Craig and Gráinne de Búrca.29 In addition, the conception of legal certainty as predictability and acceptability is bound to be cultural.30 This means that expectations about the content of rules and decisions may vary across different cultures and that the cultural history of a country needs to be taken into account when trying to establish a rule of law system.
§1.2.2 Supremacy of Law
Supremacy of the law refers to a principle of governance which requires that rules are fully respected and that all persons, institutions and entities are bound by the law and accountable to the laws.31 By using the views of A.V. Dicey and Hans Kelsen the supremacy of law as part of the rule of law is going to be outlined.
Dicey defines the rule of law as the supremacy of law for which he is most known. He wrote about the supremacy of the law and the rights of citizens protected under the English Constitution. According to Dicey, the supremacy of law has three different meanings, in which he focuses on the role of courts and the role of the constitution.32 Dicey can be regarded as one of the first legal positivist, by focusing on the constitutional law which affects the sovereign power of the state. Kelsen tries in his book
26 Ibid, 114. 27 Ibid, 372-374. 28
Aleksander Peczenik, On Law and Reason 8 (Dordrecht: Kluwer Academic Publishers, 1989), 31-33.
29
Paul Craig and Gráinne de Búrca, EU Law. Text, Cases and Materials (Oxford: Oxford University Press, 2008), 551.
30
Raitio, The principle of legal certainty in EC Law, 372-374.
31
United Nations, The Rule of Law at the National and International Levels: Comments, 2-33.
32
„Pure Theory of Law’ to eliminate everything that is not strictly law. As a legal positivist he cites the state which is a government by law, called Rechtsstaat.33 This means that a state as a legal order creates the law and then subjects itself to it. It infers that the state acts, not above the law, but within the law. In short, within an effective rule of law system authorities as well as members of the public are governed by the law. Therefore, citizens are protected against their own government as well as against private violence. If a state cannot provide this protection, it might lose its legitimacy.34 In an effective rule of law system authorities derive their powers from laws and their decisions and policies should be under the law.35 A rule of law system in authoritarian regimes is for this reason not sustainable, because authoritarian leaders consider themselves as above the law. In short, the principle of supremacy of law distinguishes the rule of law from the rule by law and this study will consider the rule of law as contradictory to arbitrariness and discretionary power.
§1.2.3 Separation of Powers
From the different views of the states it is possible to argue that the separation of powers, including the independence of the judiciary, is an element of the rule of law.36 Separation of powers has been associated with Montesquieu. He argued that on the one hand in a democracy it is important to avoid inequality, which would lead to an aristocratic state or autocracy. On the other hand it is also important to avoid extreme equality, which could lead to despotism of one person. Therefore, he argued for a political system where different organs are independent from each other, namely the judicial, legislative and executive powers.37 This system is also known as the Trias Politica. The view of Montesquieu is extremely important for the principle of separation of powers as part of the rule of law definition. Without an independent judiciary an effective rule of law system will not function properly, for example when the executive power curtails the judiciary.
Without the certainty of an independent judiciary, the trust of civilians in the rule of law declines. According to Joseph Raz, who is known for his writings about the rule of law, an independent judiciary must be guaranteed, the courts should have powers to ensure conformity to the rule of law and the courts should be accessible.38 According to the writer the courts should act impartially and should provide remedies, sanctions and procedures for resolving conflicts over the substance, applicability and validity of rules. Moreover, citizens should be given the possibility to contest the validity of rules which have been applied. The last and most important aspect of all in this regard is that the independence of the court should be secured, to avoid political and other influences on the judicial decisions.39 Samuel J.M. Donelly also states that when courts enforce the rule of law, citizens have greater confidence in the courts. This infers that there will be an increase in the willingness of the local population to bring their conflicts to
33
Hans Kelsen, Pure Theory of Law (Berkely: University of California Press, 1967), 312-314.
34
Samuel J.M. Donelly, “Reflecting on the Rule of Law: its Reciprocal Relation with Rights, Legitimacy and Other Concepts and Institutions,” Annals of the American Academy of Political and Social Science 603, no.1 (2006): 42.
35
Voorhoeve, Peace Building after Violent, 92.
36
United Nations, The Rule of Law at the National and International Levels: Comments, 2-33.
37
Charles Montesquieu, Over de Geest van de Wetten, translated edition by Jeanne Holierhoek (Amsterdam: Boom, 2006), 167-169.
38
Joseph Raz, “The Rule of Law and Its Virtue,” The Law Quarterly Review 93 (1977): 198-201.
39
court.40 In short, an independent court is required for an effective rule of law system. This can be regarded as a formal notion of the rule of law, because it is not about the content of the law and its principles, but about the procedural requirements of the rule of law.
§1.2.4 Equality Before the Law
States have emphasized in resolution A/62/121 that laws should be equally enforced. This equality before the law has been recognized as falling under de rule of law values.41 Everybody who is subject to the jurisdiction of a state should receive an equal treatment, according to this principle. The notion of the rule of law as incorporating equality contrasts with arbitrariness in the application of law and it emphasizes the individual rights and fairness in treatment.42
Furthermore, the prohibition of this equality principle has been set out in different treaties. The most prominent example is Art. 14 of the International Covenant on Civil and Political Rights (ICCPR), which states that all persons shall be equal before the courts and tribunals. Equality before the law is about whether a person is entitled to a fair and public hearing by a competent, independent and impartial tribunal. This article establishes a formal element of the rule of law in relation to the state.
This principle of equality before the law coincides for a part with more general notions of non discrimination. In Article 2 ICCPR it has been noted that the enjoyment of rights should be possible “without distinction of any kind.” Besides, in Article 14 of the European Convention of Human Rights (ECHR) it has been stated that “the enjoyment of the rights and freedoms shall be secured without discrimination on any ground” and a general equality exigency can also be found in Article 26 of the ICCPR, Article 3 of the African Charter on Human and Peoples‟ Rights (ACHPR) and in Protocol 12 of the European Convention on Human Rights (ECHR). All these articles emphasize that every individual shall be entitled to equal protection by the law.43 In this study equality as part of the rule of law is considered as a procedural requirement of law, thus as a formal element of the rule of law.
§1.3 Measurement of the Rule of Law
According to the Scientific Council for Government Policy there are several functional components for a rule of law system.44 Because the components are overlapping each other and there is insufficient space here to analyze all the components, only the judiciary, the legislation and the police forces are going to be analyzed. To make a complete assessment, law components as well as order components have been chosen. A country can have for example an excellent legal framework, but a weak police force and vice
40
Samuel J.M. Donelly, “Reflecting on the Rule of Law,” 44.
41
Summers, “A Formal Theory of the Rule of Law,” 131 and 138.
42
United Nations, The Rule of Law at the National and International Levels: Comments, 2-33.
43
Icelandic Human Rights Center, The Right to Equal Protection and the Prohibition of Discrimination. Available at the website http://www.humanrights.is/the-human-rights-rpoject/humanrightscasesandmaterials/comparativeanalysis/eqality protection.
44
versa.45 It is going to be analyzed whether local ownership of the population plays a role within these components. After this, it will be examined what effects the degree of local ownership has created on the sustainability of the rule of law. In order to research whether local ownership has a high or low impact on the sustainability of the rule of law the four elements from the definition will be used, namely legal certainty, separation of power, supremacy of law and equality.
Measurement of the rule of law
Law components The judiciary
Legislation
Order component The police forces
Figure 2. Two major components of a rule of law system.
§2. The Concept of Local Ownership in Establishing the Rule of Law
It has been recognized that dialogue and participation of the local population in establishing the rule of law are essential to the success of the process. Namely, in 2004 Secretary General Kofi Annan released a report about the roles played by the United Nations in conflict and post-conflict societies. Annan concluded in this report that too often the emphasis has been on foreign conceived solutions. It was noted that no rule of law reform or reconstruction without the involvement of local people could be successful.46 This section shows that the involvement of local people in establishing the rule of law is necessary. For that reason it uses the concept of local ownership.
§2.1 The Concept of Local Ownership
Local ownership has many different dimensions, namely economic, legal, criminal, psychological and political. In the context of the rule of law, ownership of the population seems to be best understood by referring to the psychological dimension which consists of the elements identification, commitment, responsibility and desire.47 In its broadest terms, local ownership can be defined within this psychological dimension, in both process and outcome of institution building. Annika S. Hansen argues that local ownership is an outcome, because local institutions and local capacity are necessary for a sustainable rule of law. On the other hand, local ownership can be seen as a process because it determines the outcome in that it ensures that local institutions are appropriate for a specific society.48 Simon Chesterman introduced a more precise definition of local ownership that is based on the way the term is used in the context of post conflict reconstruction. Chesterman describes local ownership as how a population comes to regard
45
Kevin E. Davis, “What can the rule of law variable tell us about rule of law reforms?” Michigan Journal of
International Law 26, no. 141 (2005): 148-150.
46
United Nations, The Rule of Law and Transitional Justice in Conflict and Post Conflict Studies (Report of the Secretary General S/2004/616, 2004). Available at http://daccessdds.un.org/doc/UNDOC/GEN/NO4/395/29/PDF/NO439529.pdf.
47
Peter de Valk, Raymond Apthorpe and João Guimarães, Local Ownership, Co-ownership and Capacity Building in Aid
Projects: the Findings of a Comparative Study, ISS Working Paper No. 407 (The Hague: ISS, 2005), 5.
48
Annika S. Hansen, “Building Local Capacity for Maintaining Public Security” in After Intervention: Public Security in
Post Conflict Societies. From Intervention to Sustainable Local Ownership, ed. Anja H. Ebnöther and Philipp H. Fluri
certain policies as its own. Ownership in this definition can be passive (policies are responsive to local situations) or active (local actors are involved in the development of policies).49 The definition of Chesterman will be used in addition to the definition of Hansen. A central feature in this definition is the term control. Local ownership tells us something about whether the local owners have control over decisions and whether they are able to respond to the appropriateness of decisions.
§2.1.1 Local Ownership as a Bottom Up Approach
The top down approach deals only with leaders at the state level and is a more centralized approach. Adherents of this theory believe that, for example, a peace agreement will automatically trickle down to the private sector. The bottom up approach, on the other hand, deals with grassroots or community level of the society. Interventions involve the society instead of only the leaders at the state level. Furthermore, it makes use of awareness raising, training, dialogue and community reconciliation.50 Therefore, the concept of local ownership fits best within the bottom up approach.
Proponents of a bottom up approach mainly argue that the participation of people from and at grassroots level is vital for the long term and continued process of transition and thus for the sustainability of reforms. 51 Within these approaches it is generally believed that local people have the ability to define problems and conceptualize and implement appropriate responses to these problems.52 According to Jane Chanaa, local mechanism often remains undiscovered and ignored by donors. Chanaa argues that local traditions and newly introduced institutions do not have to exclude each other. It is important to recognize that sustainable reforms will not be achieved without understanding social values and organizational practices.53
The bottoms up theories have been criticized. Richard Caplan is reticent in suggesting that local ownership is always an example of good practices in post-conflict situations. He argues that a transitional administration in possession of full executive authority instead of supervisory is better suited to meet the challenges of a state building operation. Without a full authority it is more likely that local actors obstruct the state building efforts.54 Critics argue that local ownership must be tempered in post conflict situations because of the reason which brought the country into conflict in the first place.55 Although this all might be true, this does not mean that the international actors and top level leadership have a carte blanche to act in any way they see fit.56 Despite the above criticism, it has generally not contested that local owners need
49
Simon Chesterman, “Ownership in Theory and in Practice: Transfer of Authority in UN State Building Operations,”
Journal of Intervention and State Building 1, no.1 (2007): 9-10.
50
Johan Svensson, “Bottom Up vs Top Down Approaches in Peace Building and Democratization” in Violent Conflict and
Democratization, ed. Lars Rudebeck (Uppsala: Proceedings of a Conference and Workshop, 2005), 18-19. Available at
http://www.kus.uu.se/pdf/publications/outlook_development/outlook27.pdf#page=23.
51
Ibid., 22. And Jane Chanaa, Security Sector Reform: issues, challenges and prospects, Adelphi Paper No. 344 (Oxford: The International Institute for Strategic Studies, 2002), 64-66.
52
Patricia Lundy and Mark McGovern, “Whose Justice? Rethinking Transitional Justice from the Bottom Up, Journal of
Law and Society 35, no.2 (2008): 280.
53
Jane Chanaa, Security Sector Reform, 64-66.
54
Richard Caplan, A New Trusteeship? The International Administration of War Torn Territories, Adelphi Paper No.341 (New York: The International Institute for Strategic Studies, 2002), 10.
55
Simon Chesterman, “Ownership in Theory and in Practice,” 20-21.
56
to be involved in the long term. There are even arguments that local initiatives are the most important drivers for reform in certain African and South East Asian countries.57 In short, there is a necessity for local ownership.
§2.1.2 Sustainability of the Rule of Law Measured by Local Ownership of the Population
Among local actors we can distinguish between the populations in their various organizational forms, the authorities and members of the security sector.58 In most articles, the term local ownership is alternately being used for all these three categories or only restricted to governmental actors. That there is a need to broaden the term ownership was recognized in a background paper of different civil society organizations.59 To research whether the population has local ownership in establishing the rule of law we need to look at the six senses of ownership, defined by Chesterman.60 The formulation of Chesterman is not exactly based on the local ownership of the population, because the author does not make a distinction between the authorities, members of the security sector and the local population. Therefore, I slightly adjusted the formulation of Chesterman to be applicable for the local population. It can be argued that when all these elements are fulfilled, there is a high degree of local ownership.
Six senses of local ownership by the population
Responsiveness Are policies designed to be responsive to local circumstances
Consultation Are policies designed through consultation with the local population
Participation Is the local population allowed to participate in decision making policies structures
Accountability Are there mechanisms to allow the local population to hold international actors and top level leadership accountable
Control Is the control by the local population subject to being overridden by international actors and top level leadership
Sovereignty Power to demand the departure of international staff and top level leadership
§3. Hypothesis and Methodology
Up to now the concepts of the rule of law and local ownership have been introduced and the following research question and hypothesis can be formulated:
Research question To what extent is local ownership by the local population a determinant factor in establishing and maintaining the rule of law after a conflict situation
Hypothesis A high degree of local ownership of the local population in establishing the rule of law will enhance the sustainability of the rule of law.
Figure 4. Research questions and hypothesis.
57
Jane Chanaa, Security Sector Reform, 68-69.
58
Annika S. Hansen, “From Intervention to Local Ownership: Rebuilding a Just and Sustainable Rule of Law after Conflict” in Just Post Bellum. Towards a Law of Transition. From Conflict to Peace, ed. Carsten Stahn and Jann Kristof Kleffner (The Hague: T.M.C. Asser Press, 2008), 138-139.
59
Interpeace, Voices of Civil Society Organizations, 6.
60
Simon Chesterman, “Ownership in Theory and in Practice,” 20-21
To understand the debates about local ownership in establishing the rule of law, it is necessary to look at the real situations in the field. This study is based on a comparative case-based research method. The analytical part of the paper discusses two case studies, namely Timor Leste and Rwanda. These cases are going to be compared to see if specific independent variables play a role in determining the different outcomes.
Both cases show different outcomes with regard to a sustainable rule of law according to the World Governance Indicators (WGI) of the World Bank. These indicators capture perceptions of the extent to which agents have confidence in and abide by the rules of the society and in the quality of enforcement, police and the courts.61 After the genocide in 1994 in Rwanda one can see a gradual upward trend with regard to a sustainable rule of law. In Timor Leste this is not the case and one can note that the sustainability of the rule of law fluctuates.62 Whether local ownership plays a role in determining the different outcomes will be researched, though there are arguments that in Timor Leste a top down model has been applied and in Rwanda more a bottom up model. Tanja Hohe served for a few years in Timor Leste, including as a District Electoral Officer for the United Nations Mission in East Timor (UNAMET). She concluded that the state building interventions in Timor Leste were placed on top of an indigenous system of justice at the grassroots level.63 The case of Rwanda is relevant because it seems to involve more the local population in establishing the rule of law, because of the use of the traditional Gacaca courts which were established in 2001. Rwanda will be researched from 2001 and Timor Leste from 1999, both for a period of more or less ten years. Although in the case of Rwanda the initiatives before 2001 will also be part of the analysis, the main focus will be on the ten years after the establishment of the Gacaca courts. A period of ten years has been chosen because establishing the rule of law is not a short term process. The relation between local ownership and the rule of law can be illustrated by the following research scheme.
Figure 5. Research scheme.
61
Daniel Kauffman, Aart Kraay, Massimo Mastruzzi, Governance Matters VIII. Aggregate and Individual Governance
Indicators 1996-2008, World Bank Policy Working Paper 4978 (Washington DC: World Bank, 2009).
62
World Bank, Country Data Reports Timor Leste and Rwanda 1996-2009. Available at http://info.worldbank.org/governance/wgi/mc_countries.asp.
63
Tanja Hohe, “Justice without Judiciary in East Timor,” Conflict, Security and Development 3, no.3 (2003): 336. Low degree of local
ownership by the civil society
High degree of local ownership by the civil society
Options A and D show the expected relation between the degree of local ownership by the local population on the rule of law as independent variable and the sustainability of the rule of law as dependent variable. In this research it is also possible that a low degree of local ownership by the local population leads to a sustainable rule of law (option B) or that a high degree of local ownership by the local population does not lead to a sustainable rule of law (option C). In the case of option B and C the conclusion will be that the impact of local ownership by the local population on the rule of law does not play a significant role in the degree of effectiveness of the rule of law.
The research takes place according to the following phase model. For both countries an assessment will take place of the different rule of law components, namely the judiciary, the legislation and the police forces. For these elements it will be researched whether there is local ownership of the local population, thus whether the requirements of responsiveness, consultation, participation, accountability, control and sovereignty are fulfilled. Thereafter it will be researched whether this has led o to a high or a low impact on the rule of law. This can be tested by assessing the impact of local ownership on the four elements from the rule of law definition, namely legal certainty, supremacy of law, separation of powers and equality.
Research phase model
Phase 1. Phase 2.
Assessment of the rule of Whether there is local
law components ownership of the local population within these components
Phase 3.
Impact of local ownership on the rule of law elements
Judiciary & legislation Responsiveness Police forces Consultation
Legal certainty Supremacy of law Participation Accountability Control Sovereignty Separation of powers Equality
Chapter 2. Analyzing Local ownership in Timor Leste and Rwanda
This chapter explores the degrees of local ownership in both Timor Leste and Rwanda with regard to establishing the rule of law after a conflict situation. In both case studies the elements of local ownership will be analyzed. As explained in chapter one, only the judiciary and legislation as law elements and the police forces as order element will be discussed here. Finally, the chapter will cite the legislation in both Timor Leste and Rwanda and explain why the legislation is treated separately.§1. Local Ownership of the Population in Timor Leste
This paragraph addresses the approach of international donors in Timor Leste with regard to the rule of law. Thereby it will research the different actions of the United Nations missions and especially of the United Nations Transitional Administration in East Timor (UNTEAT), because of its responsibility for the administration in Timor Leste. The first section provides an essential overview of the establishment of a UN mission against the background of the historical past of Timor Leste. The paragraph proceeds by trying to answer the question whether the local population played a significant role in creating and maintaining the judiciary, legislation and police forces.
§1.1 A Brief History of the Establishment of a Donor Mission
Timor Leste has a history of occupation and colonization. As a former colony of Portugal it became decolonized in 1974 and it regained its independence in 1975. After its declaration of independence, Indonesia incorporated Timor Leste into Indonesia and the country was occupied for more than two decades. The United Nations Mission in East Timor (UNAMET) was created which lasted from June until October 1999 and was mandated to organize a popular consultation to examine whether the population wished to have a special autonomy within Indonesia or complete independence. In this referendum 78,5 per cent of the voters voted for independence.64 The population of Timor Leste expressed thereby its wish to begin a process of transition under the authority of the United Nations.65
UNTAET was established on 25 October 1999 by Security Council Resolution 1272 with Sergio Vieira de Mello as the Transitional Administrator. It was mandated to establish itself as an entity with overall responsibility for the administration of Timor Leste.66 In addition to this task it was also responsible for making the country ready for self government. UNTAET had a UN governorship and a local self government mandate.67 This means that there was tension built into the mandate from the beginning, which was also argued by Suzanne Katzenstein. On the one hand the short term goal was to provide security and reconstruction of the state institutions by centralizing the control to UNTAET. On
64
Suzanne Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor,” Harvard Human Rights Journal 16 (2003): 249.
65
United Nations, Security Council Resolution 1272 (U.N. Doc. S/RES/1272, 1999). Available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N99/312/77/PDF/N9931277.pdf?OpenElement.
66
The mandate of UNTAET was extended to January 31, 2002 by means of United Nations Security Council Resolution 1338 (U.N. Doc. S/RES/1338, 2001). Available at http://daccess-ods.un.org/TMP/3447883.html.
67
Joel C. Beauvais, “Benevolent Despotism: A Critique of U.N. State Building in East Timor,” International Law and
the other hand self determination would require participation of the population and therefore a more decentralized approach in the long-term.68 The possibility of local ownership of the local population in establishing the rule of law was complicated by a tension between short-term and long-term interests in the mandate of UNTAET as will become clear in the next sections.
UNTAET may qualify itself as a new generation peacekeeping mission because of the active role it played in conflict resolution and state reconstruction activities.69 Although UNTAET had a broad mandate, the need to consult and cooperate closely with the people from Timor Leste was also stressed in Security Council Resolution 1272.70 This raises the question to what extent the local population was actually involved in establishing the rule of law, which will be assessed in the next section. After the achievement of its independence in 2002, a United Nations Mission of Support in East Timor (UNMISET) was established to provide assistance to Timor Leste until all operational responsibilities were fully devolved to the authorities of Timor Leste.71
§1.2 A Local Ownership Analysis of the Judiciary and the Police Forces in Timor Leste
UNTAET was empowered to exercise all legislative and executive authority.72 UNTAET created judicial bodies and designed the legal framework by means of passing regulations. An example of such a judicial body is the Transitional Judicial Service Commission, which was put into service in 1999 and served as a mechanism for the selection of judges and prosecutors.73 The Special Panels for Serious Crimes were established in 2000 and they were given exclusive jurisdiction over allegations of crimes between 1 January and 25 October, 1999.74 Furthermore, a Serious Crimes Unit (SCU) was established in 2000, which was designed to pursue serious crimes.75
An international police element was also a part of the mandate of UNTAET which was responsible for inter alia the executive policing.76 On 10 August, 2001 UNTAET established the Policia Nacional de Timor-Leste (PNTL) by means of Regulation 2001/22, later renamed as the Timor Leste Police Service (TLPS).77 However, the direct responsibility for law enforcement remained the task of the United Nations Civil Police (UN CivPol) until 2006. The genuine police reform process formally commenced with the United Nations Integrated Mission in East Timor (UNMIT) mandate in 2006 and with the signing of the Supplementary Agreement between UNMIT and the government of Timor Leste
68
Suzanne Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor,” 249.
69
Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution: the Prevention,
Management and Transformation of Deadly Conflicts (Cambridge: Polity Press, 2007), 141-144 and 154.
70
United Nations, Security Council Resolution 1272.
71
UNMISET, Background and Mandate. Available at http://www.un.org/en/peacekeeping/missions/past/unmiset/ mandate.html. Two missions followed, namely UNOTIL and UNMIT in order to support the state institutions and stability in Timor Leste.
72
United Nations, Security Council Resolution 1272.
73
UNTAET, Regulation on the Establishment of a Transitional Judicial Service Commission (1999/3). Available at http://www.eastimorlawjournal.org/UNTAETLaw/Regulations/Index.html.
74
UNTAET, Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (2000/15), available at http://www.eastimorlawjournal.org/UNTAETLaw/Regulations/Index.html.
75
UNTAET, Regulation on the Organization of the Public Prosecution Service in East Timor (2000/16). Available at http://www.eastimorlawjournal.org/UNTAETLaw/Regulations/Index.html.
76
United Nations, Security Council Resolution 1272.
77
on 1 December, 2006. In this Agreement it was agreed to hand over the executive policing to the PTNL.78 Despite these efforts the PNTL collapsed as an organization due to inter alia attacks against the PNTL, internal disputes and a lack of unity within the PNTL itself.79
Despite great efforts of the donors, many believe that the justice sector and the police forces in independent Timor Leste was and still is weak and argue that this is partly due to the approach of the UN missions.80 In addition, the confidence of the population within the society in legislation and the rules of the society was fluctuating.81 An interesting question would be whether the approach of a foreign led mission contributed to an effective rule of law system and whether they did not and to what extent this can be explained by the degree of local ownership of the local population.
§1.2.1 Responsiveness
The responsiveness of a policy refers to whether a policy is designed to be responsive to local circumstances. That there is a need to understand the historical background of a state and to understand that each situation has its own dynamics and actors was recognized in a background paper of different civil society organizations on peace building and state building.82 This means that we have to take the indigenous legal mechanism that already exists in the country into account.
During the Portuguese colonial administration the judiciary was largely left to local leaders and it was dominated by traditional systems, called Adat.83 The Adat system is an informal traditional system within the community itself, where local leaders are responsible for law and order issues. There were thus working traditional justice mechanisms prior to and during the conflicts in Timor Leste. This contradicts arguments of UNTAET officers and theorists that an Indonesian judiciary was needed, in order to avoid a legal vacuum.84 UNTAET officers believed that there was not a functional legal mechanism and that the judiciary had to be rebuilt from the ground. The existence of indigenous legal mechanisms which are closely connected to the entire social system was largely ignored. This opinion is shared by Tanja Hohe who states that, if indigenous legal systems were ignored and replaced by new systems that have nothing to do with the social context, difficulties arise with regard to understanding and application of these new laws by the population.85 UNTAET undermined indigenous forms of political legitimacy without establishing a reliable and sustainable alternative.86
78
V.E. Wilson, Smoke and Mirrors: Institutionalizing Fragility in the Policia Nacional Timor Leste (Darwin: Paper delivered at Democratic Governance in Timor Leste: Reconciling the National and the Local Conference, February7-8, 2008): 238.
79
Damien Kingsbury, “Timor Leste: The Harsh Reality After Independence” in Southeast Asian Affairs, ed. Daljit Singh and Lorraine Salazar (Singapore: Institute of Southeast Asian Studies, 2007), 371-372.
80
Tanja Hohe, “Justice without Judiciary in East Timor,” 338.
81
World Bank, Country Data Report for Timor Leste, 1996-2008. Available at the website http://info.worldbank.org/governance/wgi/pdf/c217.pdf.
82
Interpeace, Voices of Civil Society Organizations, 5.
83
Tanja Hohe, “Justice without Judiciary in East Timor,” 336.
84
For example Hansjoerg Strohmeyer, “Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor,”
UNSW Law Journal 24, no. 1 (2001): 172. And Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor,” 250.
85
Tanja Hohe, “Justice without Judiciary in East Timor,” 336.
86
The perception by the population with regard to the judiciary was that it was too expensive, the timely procedures were not effective and the judgments and punishments were not satisfying.87 For example, in traditional justice systems there is rather a form of restorative justice than punitive justice and this means that imprisonment is not a solution for most crimes on local level.88 The general trend according to a survey performed by the Asia Foundation was that the people of Timor Leste were hopeful that the applied system would be fair, but that they were more confident in a system that already worked, namely their own traditional Adat process.89 Moreover, because local solutions were commonly accepted, conflicts within the community were unlikely to continue in the future.
There are drawbacks of using traditional law systems, such as inconsistent application and ignorance of certain human rights standards.90 Nevertheless, an effective rule of law system cannot be established with ignorance of traditional systems. In addition, a modified Indonesian judicial system was widely perceived by the local population as being tools of the Indonesian occupation and it was rejected by many of the community.91 Moreover, the government insisted on using the Portuguese language in the judicial sector, while a majority of the people did not speak this language.92 It contributed to larger backlogs of cases and less trust in the judicial sector by the local population. The responsiveness of the judiciary was thus questionable.
When we look at the police forces, one can note that there was not a genuine official police force available in Timor Leste when UNTAET arrived. All that was left were the former police officers who served in the Indonesian police force.93 But also the argument explained above, namely that the local population put their trust more in the traditional processes, is applicable to the police forces. In a survey, three quarters of the citizens point to local and community leaders as being primarily responsible for maintaining security, instead of the PNTL.94 That there was a tension between the cultural perception and the donor perception of a police force can also be illustrated by the way the local population was selected to participate in the police force which was set up by CivPol. During the interview process, a questionnaire that was culturally western had to be completed. The use of a western questionnaire resulted in a diminished possibility for the population to show their abilities.95 Civil society organizations argued that CivPol did not make enough effort to work with the local community to understand better the issues at play within these societies.96
87
Tanja Hohe, “Justice without Judiciary in East Timor,” 343-349.
88
Laura Grenfell, "Legal Pluralism and the Rule of Law in Timor Leste,” Leiden Journal of International Law 19 (2006): 317-318.
89
Asia Foundation, A Survey of Citizen Awareness and Attitudes regarding Law and Justice in East Timor (Dili, February 2004), 6-10. Available at the website http://asiafoundation.org/pdf/easttimor_lawsurvey.pdf.
90
Grenfell, "Legal Pluralism,” 319-320.
91
Strohmeyer, “Policing the Peace,” 173-174.
92
Suzanne Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor,” 269.
93
Eirin Mobekk, Law Enforcement: Creating and Maintaining a Police Service in a Post Conflict Society. Problems and
Pitfalls, Geneva Working Paper No. 127 (Geneva: Geneva Centre for the Democratic Control of Armed Forces DCAF,
2003), 1-2. Available at the website: http://www.dcaf.ch/_docs/wp127.pdf.
94
Liam Chinn and Silas Everett, A Survey of Community-Police Perceptions Timor Leste in 2008 (Dili: The Asia Foundation, 2008), 23-24.
95
Mobekk, Law Enforcement, 1-2 and 8-9.
96
§1.2.2 Consultation
Consultation as an element of local ownership refers to whether policies are designed through consultation with the local population. When the local population is not sufficiently involved in setting up the judiciary and the police forces, the system may become unstable after the withdrawal of donor actors. The achievements of the initial physical recovery and the provision of basic services by UNTAET and UNMISET are praiseworthy, but there was a lot of critique from the local population about a lack of consultation.97 In 1999 the people from Timor Leste were consulted about whether they wished to be independent from Indonesia or wanted to gain a special autonomy within Indonesia. They expressed their wish to begin a process of transition under the authority of the United Nations.98 Besides this consultation, in most regulations passed by UNTAET with regard to the judiciary it is stated that the National Consultative Council (NCC), later the East Timorese National Council (ETNC) had been consulted.99 It is however questionable whether there was a genuine consultation of the local population.
This NCC was established to provide advice to the Transitional Administrator on all matters related to the exercise of executive and legislative functions. It was suggested that this council was a mechanism through which the people of East Timor could be involved in the decision making process. But it was also stated that this council should not prejudice the authority of UNTAET and the transitional administrator.100 The NCC consisted of people from Timor Leste and international actors, but the National Timorese Resistance Council (CNRT) was prominent in the NCC.101 This political group came
97
Ian Patrick, “East Timor Emerging from Conflict: The Role of Local NGOs and International Assistance,” Disasters 25, no.1 (2001): 62.
98
United Nations, Security Council Resolution 1272.
99
UNTAET regulations 3/1999 (on the establishment of a transitional judicial service commission), 11/1999 (on the organization of courts in East Timor, 15/1999 (on the establishment of panels with exclusive jurisdiction over serious criminal offences), 16/1999 (on the organization of the public prosecution service in East Timor), 30/2000 (on the transitional rules of criminal procedure), 10/2001 (on the establishment for a Commission for reception, truth and reconciliation in East Timor). Available at the website http://www.eastimorlawjournal.org/UNTAETLaw/ Regulations/Index.html.
100
UNTAET, Regulation on the Establishment of a National Consultative Council (1999/2). Available at http://www.eastimorlawjournal.org/UNTAETLaw/Regulations/Index.html
101
Beauvais, “Benevolent Despotism,” 1119-1120. From the fifteen members there were seven of the CNRT, three of UNTAET, one for the Transitional Administrator and three others.
into existence in 1998 and can be regarded as a popular front representing different political factions. In 1999 it served as an umbrella for those who strived for independence during the referendum in 1999.102
The CNRT can thus be seen as a independence organization. However, there were also pro-Indonesian groups and civil society organizations who felt that they were not represented by the CNRT.103 Because the CNRT prevailed in the council, the NCC was not a reflection of the will of the local population as a whole. In addition, the NCC was a non-elective and a strictly consultative body, with no executive or legislative power.104 This means that although the CNRT was given a privileged role, there was no genuine consultation and participation of the local population possible. This contributed to the demise of the CNRT in 2000 when two important factions ended their participation in the CNRT.105 The NCC can clearly not been seen as an influential body representing the whole local population of Timor Leste. It was counter-productive to the creation of local ownership of the local population in establishing the judiciary because it gave the CNRT a privileged position at the expense of other political parties and there was no genuine involvement in the decision making process of all the actors in the society.
When the NCC was replaced by the ETNC in 2000, it expanded its representation to include different actors in the society. The ETNC was, unlike the NCC, able to initiate, modify and amend regulations. Still decisions had to be approved by the Transitional Administrator.106 This means that there was no genuine consultation of the local population during the beginning of the transition process and a moderate consultation in the years thereafter. Although this may partly be caused by internal instability in 1999, it is also an indication of a lack of legitimacy and a lack of local ownership by the local population. From above it becomes clear that public consultation was not fulfilled by just consulting the NCC and later the ETNC.
Even when a consultation of the local population took place the consultation process was in many cases not sufficient, because the laws were developed and published in Portuguese like the consultation processes. This language was not spoken by a majority of the people of Timor Leste.107 An expression of a lack of consultation by the local population can be illustrated by the decision of the prime minister in 2002 after the riots in Dili to commence a process of open governance in response to the criticism that the local population was not consulted in the decision making process. The Timorese population regarded the decision making process, also and especially with regard to the judiciary, as highly centralized.108 A second example is the moderate participation in the drafting process of the constitution in 2002. There
102
Randall Garrison, The Role of Constitution Building Processes in Democratization. Case Study East Timor, IDEA Paper (Stockholm: IDEA, 2005), 9-10. Available at the website http://www.idea.int/cbp/upload/CBP-Timor-Leste.pdf. Umbrella organization Conselho Nacional de Resistencia Timorensa (CNRT) must be distinguished from the political party National Congress for Timorese Reconstruction (CNRT) which was founded by former president Xanana Gusmao in 2007. Although Gusmao played also an important role in the umbrella organization, because he was appointed to a senior role in the UN administration until May 20, 2002.
103
Human Rights Watch, World Report East Timor 2001, available at the website http://www.hrw.org/wr2k1/asia/etimor.html.
104
Beauvais, “Benevolent Despotism,” 1119-1120.
105
Garrison, The Role of Constitution Building Processes in Democratization, 9.
106
Beauvais, “Benevolent Despotism,” 1119- 1120 and 1127-1129.
107
JSMP, Overview Justice Sector in Timor Leste 2009 (Dili, February 2010). Available at the website: http://www.jsmp.minihub.org/.
108
Rebecca E. Engel, “Reaching for Stability, Strengthening Civil Society Donor Partnerships in East Timor,” Journal of
