Constitutional Assistance in Post-Conflict Countries The UN ...

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtconstitutional aspirations. These aspirations mustinform not just choices about who should govern forone term but the blueprint for society itself. Hence, astrictly democratic electoral model dependent onrepresentation through the ballot is usually notsufficient to capture public preferences in postconflictconstitution-making exercises.Direct ParticipationThe degree to which a process canincorporate direct participation (typically throughcivic education and consultation) will depend on thecontext. Political elites will by necessity play a majorrole in decisions on how to structure the new state(this is important both for peacemaking and forfuture implementation of the constitution) but wherepossible, the role of the UN should be to broaden thepolitical space so that the final constitution does notmerely represent the views of warring factionsholding power at the end of a conflict.There is no single way to conduct a participatoryprocess; each post-conflict situation has a unique setof challenges and specific objectives for theconstitution-making exercise. Nonetheless, followingfrom some of the lessons learnt from the case studies,the following elements may lead to more genuineparticipatory processes:• a legal mandate and clear roadmap for theprocess which clearly indicates to the publicat what stages they can participate and how;• carefully crafted rules of procedure tominimize the risk that the process will spiralout of control or lead to more violence andensures the process does not unduly raise theexpectations of the public.• awareness raising to increase the political willof the international community,constitutional drafters and political elites totake measures to establish a genuineparticipatory process;• the establishment of an independent body(often a constitutional commission) which ismandated to conduct separate phases ofpublic education and inclusive consultationson key constitutional issues before preparingthe constitution;• the allocation of a minimum of one year(whenever possible) to conduct separatephases of civic education on constitutionalissues and hold public consultations;• holding public consultations prior topreparing a draft to encourage the public toexpress their views and then holding apossible second consultation process on thedraft;• using creative means to ensure thatmarginalized groups participate (such asilliterate citizens or the disabled);• an adequate budget (with donors brought onboard as soon as possible);• the establishment of an administrative body(such as a secretariat) to assist withimplementing the participatory mechanismsand the demanding logistical arrangements;• sufficient time and resources to conductcapacity building programs to preparenational staff to effectively conduct civiceducation and public consultation programs;• support to civil society and the media toparticipate and facilitate direct participation;• fostering dialogue and the exchange of publicviews between identity groups orcommunities;• an agreed upon methodology andmechanisms (including data base programs)to collate, summarize and analyzesubmissions to the Commission;• the dissemination of a report explaining tothe public the results of the consultation,how competing views were considered andaccommodated, and how key decisions weremade;• transparent mechanisms for sharing drafts ofthe constitution and following deliberationson the draft by the constitutional organadopting the constitution; and4

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandt• public education on the new constitution, inparticular how the public can use it as a toolto access their rights.Nationally Owned and LedNational ownership of the process is closelyrelated to participation because the public will feelownership over the constitution if they participate inits making. But, it also relates to the role of theconstitution-makers and UN constitutional effortsshould be guided by the principle of nationalleadership, to every possible extent. Following fromthe “light foot print” approach taken in Afghanistan,international actors should not assume roles thatnational actors can and should play. To ensurenational ownership, the process should be conductedat an appropriate pace to allow for national actors tofully understand their role, learn from comparativeexperts about other experiences, weigh and deliberateupon options and enhance and build capacities whereneeded to effectively assume their responsibilities andimplement the process.Technical AssistanceMaking a constitution is a complex operationwhich requires expertise on national politics,institutional reform, electoral procedures, budgets,procurement, logistics, civic education campaigns,consultative processes, IT, public relations (for theleaders of the constitution-making bodies),comparative constitution-making options, conflictresolution, technical drafting, rules of procedures forassemblies, security arrangements, diplomacy, donorrelations, etc. It is the author’s experience thatnational actors are generally welcoming of technicalexpertise in these areas if it is offered in a fashion thatrespects their role in leading and managing theprocess. Also, often both international actors andnational actors are not aware of the complexity ofimplementing the process and providing initialoptions papers describing types of assistance that maybe needed is very helpful.In Afghanistan the UN coordinated technicalassistance and worked with the national actors toensure that persons with the right types of expertisemet their assistance needs. The UN also coordinatedsubstantive input by constitutional advisors to ensureharmonization and facilitated the provision of optionspapers that were translated into Dari and Pashtu. InEast Timor, the Asia Foundation also translatedoptions papers that the Constituent Assemblyrequested on key issues.Although it may not always be appropriatefor the UN to coordinate technical assistance, it maybe useful to provide the constitution-makers withadvice about how to best to make use of technicaladvisors and suggest what types of expertise may beneeded. The constitution-makers can then make theirown assessment of whether they have all those skillsor external actors may be useful.If technical expertise is requested, the UNshould facilitate the provision of technical assistance.As in Afghanistan, this will require linking withexternal resources because few of these capacities arecurrently located within the UN.AdoptionThe methods of adopting the constitutionshould promote consensus building. In each of thecase studies the constitutional organ tasked withadopting the constitution required that a two-thirdsmajority pass the constitution. This larger majorityencourages consensus building depending on themake-up of the adopting body. In Afghanistan therules of procedure also emphasized achievingconsensus and short of this, a vote would be taken.Implementation of ConstitutionMany constitutions remain merely on paperand are never implemented. For example, many ofCambodia’s provisions, ten years on, have not beenimplemented. The UN should provide advice aboutconstitutional provisions, mechanisms andtransitional arrangements that may be useful tofacilitate implementation post-adoption, includingsuggested deadlines for completion of important tasksand reforms. In addition, constitutional assistanceshould not end with the adoption of a constitution.5

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtas possible to prevent confusion about who hadauthority during the transition. viii There wereconcerns, too, that the longer the formation of thenew government took, the longer UNTAC’sdeparture would be delayed, increasing its financialcosts. ixThe Paris Agreement guaranteed that allCambodians would have the same “rights, freedomsand opportunities to take part in the electoralprocess.” x The Agreement did not refer to theparticipation of the public in the constitution-makingprocess itself or create any mechanisms by which thiswould be accomplished. However, as a constitutionaladvisor noted, the trend toward more participatoryand inclusive constitution-making processes had notyet taken root. xiThe Paris Agreement also specified that theconstitution be adopted by a two-thirds majority ofthe members of the Constituent Assembly xii Lastly,the parties agreed upon the following fundamentalconstitutional principles to be enshrined in the newconstitution:• the constitution will be the supreme law ofthe land;• amendment to the constitution would onlybe by a designated process involvinglegislative approval, popular referendum, orboth;• the inclusion of a declaration of fundamentalrights for the protection of specific humanrights adhere to the Universal Declaration ofHuman Rights;• that the rights must be enforceable in a courtof law;• that the constitution will be for a sovereign,independent and neutral State, and thenational unity of the Cambodian people;• the constitution will create a liberaldemocracy;• mandated periodic elections;• the right to vote; and• an independent judiciary to uphold theconstitution. xiiiAlthough the parties agreed to this set ofconstitutional principles there was no mechanism forreview to verify whether the final constitution fullyincorporated the principles. Nonetheless, prioragreement on such fundamental future provisions ofthe constitution may have bolstered the internationalcommunities resolve to finance such an expensiveundertaking.East Timor: The Cambodian ProcessRevisitedNearly ten years later, the legal framework forthe East Timorese process was prepared under theauspices of the United Nations Transitional Authorityin East Timor (UNTAET) Regulation 2001/2 “Onthe Election of a Constituent Assembly to Prepare aConstitution for an Independent and DemocraticEast Timor” was promulgated on 16 March 2001.The framework was remarkably similar to that ofCambodia.Regulation 2001/2 stipulated that an electionwould be held for 88 members to form a ConstituentAssembly. The 75 national seats would be based onproportional representation and the 13 districtcandidates would be elected by simple plurality. It alsospecified that the Constituent Assembly should adoptthe new constitution within a period of ninety days;that it would serve as an interim legislature; and couldbecome East Timor’s future legislature if the finalconstitution so provided. The Regulation alsorequired a two-thirds majority of the Assembly’smembers to adopt the constitution. xivAlthough the Constituent Assembly was togive “due consideration to the results of theconsultations conducted by any duly constitutedConstitutional Commission or Commissions,”Regulation 2001/2 did not require the ConstituentAssembly to consult with the public. xvNotwithstanding this suggestion that the structuremight incorporate commissions, a constitutionalcommission with powers to prepare a constitutionwas not created—despite civil society strongly arguing(and lobbying the Security Council) for such acommission. The reference to “Commissions” in theregulation was later implemented through anUNTAET Directive, which led to a consultationprocess (which was seen an UNTAET product8

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtdespite being legally independent) that was laterlargely ignored by the Constituent Assembly. xviA former UNTAET official responsible forassisting the drafting of Regulation 2001/2 noted thatthe Department of Political Affairs did review theParis Agreement for inspiration on designing an exitstrategy. xvii It was natural for the mission to seekguidance from the only other example of a UNtransitional administration ushering in a newconstitution. However, the contexts were verydifferent. Unlike the Cambodian process, by the timethe East Timorese process commenced, there wasinternationally a clear trend toward directparticipation in constitution-making and East Timor’scivil society had met with national actors from SouthAfrica and Thailand, among others, to share theirexperiences. This led, in part, to civil society actors, aswell as some political actors, to strongly assert thatthe process should be given adequate time to allowfor proper civic education campaigns, nationaldialogue, and an independent commission to holdconsultations with the public. xviii This would havebeen feasible because there were no dangerousspoilers within East Timor’s borders to seriouslythreaten such an open process (unlike in Cambodiaand later Afghanistan). Given these importantdifferences, the 90 day timeframe to prepare, debateand adopt a constitution may not have been a usefulprecedent to replicate in the East Timorese context.It is important to note that the legalframework for the constitutional process was draftedand adopted well into UNTAET’s mandate and thismay have led to the need to rush the process. Thepolitical elite wanted to assume authority fromUNTAET and pressed for an early end to thetransition. Certainly, some national leaders within theEast Timor Transitional Administration preferred amore streamlined process centered around an electedAssembly. However, some observers have concludedthat the tight timetable was “essentially an UNTAETcreation” because the international communitywanted a clear indicator of a successful politicaltransition in the form of a constitution. After suchfailed UN missions as Somalia and Rwanda, theinternational community required a success story. xixAlthough there was great potential to design atransparent, inclusive and participatory process, thelegal framework allowed for an elite driven process tothe great disappointment of civil society, including theCatholic Church.Another difference (related more specificallyto the context) between the legal frameworks ofCambodia and East Timor is that Regulation 2001/2did not prescribe the sort of binding constitutional orlegal principles in effect in Cambodia. In East Timor,this was in deference to the sovereignty of the electedConstituent Assembly. The stance of senior UNofficials was to have a “hands off” approach so thatthe substance of the constitution would be viewed asthe exclusive purview of the Constituent Assemblyand not foreign-imposed. Regulation 2001/2 did statethat the constitution must be for an “independent anddemocratic East Timor” but these principles werelargely a foregone conclusion and did not bind thehands of the drafters.Afghanistan: A Flexible FrameworkThe Bonn Agreement xx of 5 December 2001established the legal basis for the constitution-makingprocess. The fall of the Taliban presented theopportunity to forge a new consensus amongAfghans to reconstruct the state. Under UN auspices,the Bonn conference brought four Afghan politicalgroups together with the aim of securing agreementon a broad-based transitional government. Unlike theParis peace negotiations, the gathering was not fullyrepresentative of all elements of the Afghan polity(nor was it possible to have the Taliban represented, afactor that would later impact the peace process). TheBonn Agreement reflected the power balance at thetime, with the Northern Alliance parlaying its grip onKabul into a dominant position in the initial InterimAdministration established by Bonn. However, theagreement outlined an approximately three yeartransitional process allowing for steadily broaderrepresentation. The Interim Administration governeduntil the more representative Emergency Loya Jirgaheld in June 2002 selected a TransitionalAdministration (“TA”). The last two phases were theholding of the Constitutional Loya Jirga (CLJ) andfinally national elections.Within two months of its establishment, theTA was to establish a Constitutional Commission,with the assistance of the United Nations, to “preparethe proposed Constitution.” xxi The Constitutional9

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtLoya Jirga would adopt the draft, which was to beconvened within eighteen months of theestablishment of the TA. xxiiThe Bonn Agreement’s legal frameworkdiverged from that of East Timor and Cambodia insix fundamental ways. First, the Bonn Agreementcreated a two-pronged process: (1) a ConstitutionalCommission that would prepare the constitution and(2) a Constitutional Loya Jirga to debate and adopt thedocument. Second, the Agreement framed aneighteen-month time period for the preparation of thedraft and the convening of the CLJ, but did not set adeadline for the CLJ to adopt the new constitution.Third, the Agreement did not specify the mechanismfor the selection/election of the members of theConstitutional Commission or the Constitutional LoyaJirga. Fourth, the Agreement did not make theCommission an independent body. Fifth, the processdrew on a culturally recognized Afghan institutionalform (namely the Loya Jirga—the Grand Council).Lastly, the Agreement differed from the ParisAgreement—and to a limited extent UNTAETRegulation 2001/2—in that it did not predetermineany constitutional principles. Nonetheless, theAgreement as a whole stressed several key goals andprinciples that the constitutional exercise couldpotentially draw upon. For example, it provided thatthe goal of the transition was to create a “politicalfuture in accordance with the principles of Islam,democracy, pluralism and social justice” as well as to“end the tragic conflict in Afghanistan and promotenational reconciliation, lasting peace, stability andrespect for human rights in the country” and the‘establishment of a broad-based, gender-sensitive,multi-ethnic and fully representative government.” xxiiiThe legal framework was skeletal. It did notprovide for the mandate of the constitutional organs,the mode of appointments/elections to them, and therole of the public or basic rules of procedure. Thelack of detail in the Bonn Agreement allowed the TAand the UN to be flexible and adjust to changes in thepolitical and security climate. With UN assistance, theAfghans leading the process were free to devise asbroadly representative a Commission and CLJ aspossible, using a combination of methods forselection and appointment of CLJ delegates.This was critical because areas of the countrywere too violent for the UN to have a presence, butalso because the overall transition process wasconstantly evolving and negotiated en route as powerdynamics shifted. One of UNAMA’s objectives wasto continue reaching out to all factions and expandingthe degree of representation in the peace process.The governmental nature of theConstitutional Commission meant President Karzaiand powerful members of his Cabinet were theultimate decision-makers about the draft finallysubmitted to the CLJ. The executive control over thedraft was tempered to some extent because thedelegates to the CLJ were, taken as a whole, fairlyrepresentative and had the authority to revise thedraft.Besides the Special Representative of theSecretary-General’s (SRSG) general authority to‘monitor and assist in the implementation of allaspects’ of the Bonn Agreement, xxiv the BonnAgreement did not set up an enforcement mechanismto ensure that the TA upheld the underlyingprinciples of the Bonn Agreement. Nonetheless, theUN was able to work closely with the TA to promotethose principles. Similarly, while the constitutionalprovisions in the legal framework did not specificallyreflect the principles of inclusion, transparency andparticipation, the UN, with external technicalassistance, promoted their incorporation into thePresidential Decrees and rules of procedures, whichshaped the constitutional process.2. OVERVIEW OF THE PROCESSThis section broadly reviews the constitutionmakingprocess and takes particular account of thedegree to which, where appropriate given security andother concerns, it was inclusive, transparent andparticipatory. It provides a brief overview of thesequencing of events, the work plan of theconstitution-making organs, the mode ofappointments/elections, the genuineness of anyconsultation processes, and the method of adoptionof the constitution.Cambodia: A Constitution in Ninety DaysThe Cambodian constitutional process, asdefined by the Paris Agreement, had three mainphases: (1) the elections for the Constituent10

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtAssembly; (2) the drafting of the constitution; and (3)the adoption of the Constitution. The process did notinclude a nationwide civic education campaign onconstitutional issues or public consultation. Althoughparticipatory constitution-making is widely practicedtoday (see e.g., South Africa, Rwanda, Afghanistan),in 1993 the focus of the international community andpolitical elite was more on the final content of theconstitution as a way to create democratic governanceand on how the process could contribute to that goal.The broad timeline and structuring of theconstitutional process was as follows:April 1993:May 1993:June 1993:Sept. 1993:Political campaignConstituent Assembly electionsInauguration of ConstituentAssemblyPromulgation of newConstitutionThe sequencing of events was to include thedemobilization of seventy per cent of all forces beforethe end of the voter registration period. All armedforces were to be placed in cantonments after theelections, demobilized or absorbed into a nationalarmy. These efforts were unsuccessful and provedone of the greatest weaknesses of the process, as thepolitical campaigning and the elections in the endtook place with neither of the largest of the armedfactions—the Khmer Rouge forces or the CambodianPeople’s Party Forces—demobilized and the twosmaller parties only partly demobilized.On 7 April 1993, the political campaigningperiod began, although the Khmer Rouge had alreadyannounced that it would not participate, ostensiblybecause the political environment was not neutral.Despite high levels of violence and intimidation, theelectoral process continued. UNTAC organized itspolitical officers, military observers and civilian policeto attend the political rallies. Some areas of thecountry were off limits because of high security risks.Despite the risks, the Security Council on 20 May1993 agreed that security measures were sufficient andthat the elections should go ahead as planned, and togeneral relief the elections were largely peaceful.Moreover, close to 90 per cent of the registeredvoters turned out to vote.Nonetheless, the central objective of theParis Agreement—establishing a legitimategovernmental authority and constitutional orderthrough elections—began to unravel shortlythereafter. It was understood that the party that wonthe elections would form the government. Althoughthe National United Front for an Independent,Neutral, Peaceful and Cooperative Cambodia(FUNCINPEC) won, the Cambodian People’s Party(CPP) retained dominant military power, was firmlyentrenched at every level of government in much ofCambodia and was not willing to accept the results ofthe elections. Under threats of civil war, PrinceSihanouk brokered a power sharing arrangementbetween CPP and FUNCIPEC, resulting in co-PrimeMinisters.The 120 seats of the constituent assemblywere distributed as follows: FUNCINPEC (58), CPP(51), BLDP (10), MOLINAKA (1). A key faction inthe conflict, the Khmer Rouge, was not involved indrafting the constitution. The Constituent Assemblydid not have mechanisms for representation or inputfrom a broader set of stakeholders in society, such asyouth, women, and minorities, and hence was notinclusive in that sense. Women in particular werepoorly represented in the political parties, with onlyfive per cent of all candidates being women.There was no requirement in the Paris PeaceAccord that the public participate in the constitutionmakingprocess—other than to vote in the elections.Traditionally, this may have been consideredadequate, not only by political elites in Cambodia, butalso by the international community. This was not theposition taken by civil society, the media and thepublic, who wished to have input into the process butwere precluded because no mechanisms were in place.A coalition of 14 civil society groups calledPonleu Khmer formed to encourage public participationin the drafting of the new constitution. However,because the process did not incorporate mechanismsfor the public to participate and the drafting processwas so short, the coalition struggled to understandbasic issues of constitutionalism. xxv The coalitionrushed to translate other constitutions, share whatthey learned with other civil society members andmeet with as many nearby communities as possible todiscuss constitutional issues and consult with themabout their aspirations for the future constitution.11

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtThe coalition shared the results of their consultationsand suggested human rights provisions but they didnot feel that their input was considered and werefrustrated by the lack of transparency with theprocess. xxviOn 14 June 2003, on the first day of theConstituent Assembly, Ponleu Khmer members,numbering in the thousands (many of them monksand nuns), gathered in front of the Assembly andrequested that Ponleu Khmer be granted observer statusto make the process of drafting the constitution moredemocratic. The group read a statement, whichunderscored that the constitution should be areflection of the will of the people. xxviiHowever they felt shut out from the processand just as in East Timor, the coalition wrote a letterto the SRSG stating the following:We have the right to ask all theelected representatives about what they aregoing to include in the constitution. Theyshould let us know openly what theirintentions are. The drawing up of theconstitution is not a secret thing. All citizenshave the right to know about what will bewritten in the constitution. The people havethe right to oppose what they think isinappropriate or should not be in theconstitution. xxviiiThe SRSG replied that they had a“democratic right to lobby the members of theConstituent Assembly and the political parties towhich they belong, on any matters of concern relatingto the Constitution,” but emphasized that it was theresponsibility of the Constituent Assembly to prepareand adopt the constitution. xxixHowever, from the outset, the process washighly secretive. Rules of procedure were introducedto the Constituent Assembly and they were voted onin secret, with no debate and no public tally of thevote on the rules. xxx These rules provided for theappointment of a twelve-member DraftingCommittee. The composition of the DraftingCommittee closely followed the results of theelections: FUNCINPEC (6), CPP (5) and BLDP (1).The Drafting Committee largely conducted its workin secret. Not only were drafts of the constitution notshared with the public but also they were also notshared with the full Constituent Assembly.Although the Drafting Committee didattempt to prepare a draft, it was leaders ofFUNCIPEC and CPP who each presented PrinceSihanouk with a draft for his approval. He chose themonarchist model prepared by a Frenchconstitutional expert. The press was reporting as earlyas 26 August 1993 that a consensus had been reachedto restore the monarchy. xxxi The ConstituentAssembly reviewed the draft selected by PrinceSihanouk and adopted it with little debate on 21September 1993 by a vote of 113 to 5, with 2abstentions. Approximately five days later, with theParis Agreement fulfilled, the SRSG departed thecountry.On the ten-year anniversary of the signing ofthe constitution, the former UNTAC translator forthe SRSG lamented that the government still lackedaccountability and there is no public participation ingovernment. Moreover, the people are ill informedabout their rights and responsibilities under theConstitution. xxxii Those that participated in thedrafting of the constitution and others in society feelthat although it initially brought a “sense of order andstability,” it did not live up to its potential, as much ofit was never implemented. xxxiii Those provisions thatwere to lead to greater participation of the people ingovernment and transparency have been ignored.One of these is the establishment of the NationalCongress as an annual meeting that was to raiseconcerns and be informed on matters of nationalinterest.The political elite’s lack of will to considerthe views of the public or even other members of theConstituent Assembly and the closed door debates onthe constitution established an antidemocraticprecedent; Cambodia’s National Assembly currentlyhas little or no contact with its constituency, genuinedeliberations on legislation do not occur and there islittle transparency in government.East Timor: A Missed PeacebuildingOpportunityThe broad structure of the East Timorprocess was similar to that of Cambodia. The tight12

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtoriginal timeline was only slightly improved byextensions, resulting in:June–July 2001:HearingsConstitutional CommissionAugust 2001: Constituent AssemblyElectionsSeptember 2001: Constituent AssemblySworn-InMarch 2002:ConstitutionConstituent Assembly AdoptsSimilar to UNTAC’s voter educationprogram, UNTAET’s civic education campaign didnot cover constitutional issues. These were discussedduring the hearings conducted by the UNTAETappointed and organized Constitutional Commissionsone month prior to the elections. An internationalobserver group to the East Timor processsummarized their concerns:A primary concern is that the whole processis too rushed. The current timetable seems tomostly serve the concerns of United Nationsmember states and established politicalorganizations, rather than grassroots EastTimorese wishes as expressed by the NGOForum's Working Group on Constitutionalissues and the East Timorese CatholicChurch.Civic education started late becauseUNTAET initially failed to consult EastTimorese on its design, leaving little time forthis critical part of the democratic process.Even on election day many voters did notunderstand that the vote was to chooseConstituent Assembly members and/or thefunction of the Constituent Assembly. Whilea directive from the SRSG establishedConstitutional Commissions in each district,these commissions had only 45 days toeducate a mostly illiterate public on complexconstitutional issues and gather input. TheIndependent Electoral Commission's workconcentrated on the mechanics of the votingprocess, which naturally required muchattention.[We are] concerned that electoral regulationsalready adopted will potentially limit theoptions of the Constituent Assembly. Thedecision to have voters choose amongpolitical parties (rather than individuals orsectoral representatives) could precludediverse views and open debate. The structureof the Assembly, as well as the regulatoryencouragement for it to evolve into EastTimor’s first elected legislature, may preemptdecisions on the structure of thelegislature. The elected members are unlikelyto relinquish their positions to stand foranother election.During the election campaign, the politicalparties provided little information about theirviews on constitutional issues. A trulydemocratic process would involve moreinformed debate prior to the election. xxxivCivil society was the driving force behindencouraging broader participation in East Timor’sconstitution-making process. Civil societyorganizations had met with leaders from the SouthAfrica and Thai constitution-making processes,among others, and were enthusiastic to assist withconducting direct participatory activities so that theirpeople could give voice to their aspirations for thefuture of their country.During public hearings in the NationalCouncil (the thirty-six member, UNTAET appointedquasi-legislature) on the structure of the politicaltransition, a wide range of East Timorese actors fromcivil society, the church and others stated that theypreferred that an independent ConstitutionalCommission draft the constitution, that an electedbody ratify the constitution and that that the processprovide enough time to conduct a nationwide civiceducation campaign and consultations with thepeople.However, the Director of UNTAET’sPolitical Affairs Department asserted in the publichearings that only an elected body should decide thefuture shape of the government. xxxv This argumentreflects what one constitution-making scholar notes isthe position of “those who argue that democraticparticipation should not or cannot extend to theconstitution-making process. Coming mainly fromrealists…these arguments recognize the claim forparticipation, but instead see it met largely by the13

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtopportunity to vote for representatives or forratification.” xxxviThis perspective was mirrored by the FrenteRevolucionária do Timor-Leste Independente(FRETILIN), the dominant political party.FRETILIN did not initially welcome publicparticipation in the Constituent Assembly. SeniorFRETILIN officials felt that the people that voted forthem gave them a mandate and did not expect to playany other role. Civil society representatives and somemembers of the public throughout the processcontradicted this perspective.In February 2002, the NC’s StandingCommittee on Political Affairs (prepared primarilywith civil society members of the NC) prepared andpresented a draft regulation to establish anindependent and inclusive constitutional commissioncomposed of 26 East Timorese. The commissionerswere to be professionals or representatives of youth,women, the church and civil society. The commissionwould have a nationwide presence and establish anoffice in each of the thirteen districts.Section 3.2 of the draft regulation proposedthe following twelve-month work plan.(a) Public Information Phase,which will include mass dissemination ofinformation on the Nature of a Constitutionand the decisions need to be taken for itsadoption.(b) Debating Phase, during whichmembers of the public will be assisted indiscussing the key issues under theConstitution through debates, workshops orgroup discussions from the national to thecommunity level;(c) Consultation Phase, duringwhich members of the public will be able toformally submit their views at public hearingsheld at the Sub-Districts level.(d) Reporting Phase, during whichmembers of the Commission compile theviews expressed during the Consultationprocess and draws recommendations forsubmission to the Constituent Assembly;(e) Drafting Phase, during whichmembers of the Commission assist theConstituent Assembly with the drafting ofthe Constitution.The proposed regulation contained a range ofelements to ensure broad participation. The NationalCouncil did not approve the regulation. FRETILINlargely blocked its passage; one member ofFRETILIN claimed that the draft was intended topolitically manipulate the process. BecauseFRETILIN had already prepared a draft of theconstitution it did not necessarily want a process thatmay have led to a very different draft being tabled atthe Constituent Assembly.UNTAET prepared Directive 2001/3 “Onthe Establishment of Constitutional Commissions forEast Timor” for the purpose of “soliciting the viewsof the people of East Timor on the futureConstitution.” However, unlike the purpose of mostconstitutional commissions, this body did not have arole in drafting the constitution.Just as civil society had opposed the structureof the constitution-making process, on 18 April 2001,a coalition of civil society members wrote to theDirector of the Political Department to criticize thenew Directive:The NGO Forum believes that theestablishment of Constitutional Commissions(UNTAET Directive no. 2001/2, 31 March2001) for East Timor will appear as alegitimate process, while being seriouslyinsufficient both in terms of substance andprocess. In particular, the NGO Forum hasthree main concerns:1. The period of operation of theConstitutional Commissions is tooshort to allow for sufficientparticipation of a broad spectrum ofEast Timorese society. It will not bepossible to have an effectiveinformation dissemination processand meaningful consultation withinthis short timeframe. The reportsfrom the Commissioners to theConstituent Assembly will not berepresentative of the East Timoresepeople’s aspirations and should notbe seen as such….14

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandt2. The process for nominations,training and guidance for thecommissioners will be inadequate insuch a short timeframe….3. The objective of the Commissionis unclear, in particular how itintends to influence the work of theConstituent Assembly.The NGO Forum is very disappointed thatour concerns, which have been expressed onseveral occasions, were not taken intoaccount in Directive 2001/2.…We have no illusions that the NGOconsultation process on the Constitution willbe sufficiently representative either, undersuch a short timeframe. Therefore, we willcontinue to make the point that the timetablefor independence, and in particular, theconstitution-making process, must beextended beyond the elections for aConstituent Assembly. Without significantchange in the timetable, the new Constitutionshould be viewed as an interim Constitution,allowing more time for broad-based inputand consultation. xxxviiThe time frame of the process remainedunchanged. The issue of representation was also ofconcern. The structure of the electoral process limitedthe degree of inclusion in the Constituent Assembly.The UN, the media and leaders of the FRETILIN) allpredicted that FRETILIN would win a substantialnumber of seats because of its leadership role in thestruggle for independence. Despite the likelihood ofsingle party domination of the Constituent Assembly,the process was still structured to have the electedbody draft, debate and adopt the constitution with noprovision for marginalized groups to haverepresentation.Ninety-one per cent of eligible votersparticipated on August 30 in the elections. Theelectoral system led to an eighty-eight memberAssembly consisting of one representative from eachof East Timor's thirteen districts, with the rest of theseats divided on the basis of proportionalrepresentation. FRETILIN won fewer seats thanmany expected but still dominated with 57.3 per centof the vote and 55 total seats (43 of the general seatsand 12 of the 13 district seats). A few of the partieswith smaller electoral mandates that were very closeideologically to FRETILIN aligned with them andthis gave it the two-thirds majority required to adoptthe constitution. Thus, FRETILIN did not have toengage in consensus building to get a constitutionadopted.The Constituent Assembly was, arguably, notfully representative of the political power structure inthe country. Among the public FRETILIN’s politicalpopularity was in fact challenged by that of XananaGusmão, the charismatic leader of the resistance whohad left FRETILIN but did not form a political party.His power base was not clearly represented in theConstituent Assembly. Not all of the populaceunderstood that FRETILIN and Gusmão had splitand that voting for FRETILIN was in effect assistingthe party to limit the power of Gusmão in hisexpected role as the future President. “The use of anelected Constituent Assembly did lead to the interestsof the most powerful political party to be reflected inthe Constitution, but the lack of a competing politicalorganization meant that the constitution-makingsystem did not lead to negotiations or compromiseabout the power-sharing arrangements with the othermain power base in the country.” xxxviiiClearly, FRETELIN was likely to have wonany election at that time in East Timor and there is ademocratic argument, albeit a narrow one, to supportits subsequent domination of the process. Votersassociated it with the long struggle for independenceand that legacy represents deep political capital inEast Timor. However, voters for a constitutionalexercise are in effect asked not simply to select agovernment of one term but to make choices that willaffect the ‘blueprint’ for their society. As with manypost-conflict electoral exercises, the elections wereinfluenced more by the legacy of the past thanspecific party platforms, and certainly the electoralprocess did not bring out the constitutional issues atstake.The SRSG did stress the importance ofwomen’s participation in the elections andUNTAET’s Gender Affairs Unit trained hundreds ofwomen from political parties about how to participatein the process. In the National Council (East Timor’sappointed transitional legislature), there was intensivedebate about whether there should be a quota15

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtguaranteeing that women make up at least twenty-fiveper cent of the Constituent Assembly. Although thiswas voted against in the National Council, partiesvoluntarily placed women in winnable positions.Women comprised twenty-seven per cent of theConstituent Assembly but because of strict party linevoting, few attempted to advance provisions thatwomen’s groups had put forward in a chartersubmitted to the Constituent Assembly. xxxixUNTAET Regulation 2001/2 stipulated thatthe body should draft and adopt the new constitutionwithin three months of its first sitting. The shorttimeframe was particularly challenging because few ofthe members of the CA had experience in governanceor law. During the Indonesian occupation, the EastTimorese were largely excluded from the civil serviceexcept for low-level positions.Although inexperienced, the members wereexpected to draft the rules of procedure and decidethe future structure of the state in only a few shortmonths. Because UNTAET had taken a “hands off”approach, the UN had not prepared options forsuggested rules of procedure for how a CA couldoperate. Many of the political parties expressed deepfrustration that the time was so short and they had noguidance on how to proceed. The President of theCA also had little guidance on how to lead anassembly and discussions were unstructured; the CAspent twenty-one out of their allotted ninety daysdebating the internal rules of procedure. BecauseFRETILIN leaders were linked to Portugal, theproposed rules were nearly identical to the Portugueseparliament’s rules of procedure. The rules focused onvoting and majority rule rather than consensusbuilding.The CA established a forty-two memberSystemization and Harmonization Committee (SHC)to set up in turn a system of thematic committeeswhich focused on various constitutional topics, suchas fundamental rights or the judiciary. TheCommittees were given ten days to discuss the issuesand, hold public hearings and complete the draftarticles related to their themes. The parties gave draftconstitutions to the SHC and the SHC provided whateach party’s constitution contained for the relevanttheme for each of the committees. A few partiessubmitted drafts, but the debates overwhelminglyfocused on FRETILIN’S draft which was largelybased on Portugal’s constitution. Comments made bycivil society and others at the public hearings weregenerally not taken into consideration.By 30 November 2001, the plenary hadagreed on a draft constitution on which to debatearticle by article. By 15 December 2001, they had1,000 articles left to agree upon. The CA voted toextend its deliberations until 25 January 2002. Tocounter any pressure the members were receivingfrom other members of the international community,including the UN, eight Congressmen from theUnited States of America co-signed a letter to the CAurging them to consider extending the process afurther two months. The CA agreed to extend thedrafting process.On 31 January 2002, the CA voted totransform itself into East Timor’s first legislatureupon final approval of the Constitution. This hadbeen hotly debated because many of the smallerparties in the CA argued that the people did notunderstand that they were voting for an assembly thatwould become the future parliament. FRETILINclearly wished to maintain its dominance and voted totransform the CA into the new legislature. The UNwas also in favor of this because it was less expensivethan holding legislative elections concurrently withthe presidential election scheduled for 14 April 2002.The Electoral Commission warned the CA that itwould have been impossible to do so. xl Nonetheless,the structure of the East Timorese process had thesame potential conflict of interest issues as theCambodian—a CA tasked with determining its ownpowers as the future legislature.Civil Society’s assessment of the potentialefficacy of the UNAET organized ConstitutionalCommissions was borne out. The Commissions metwith East Timorese citizens for approximately onemonth. The Commission’s meetings combined civiceducation on constitutionalism with consultations.These two elements of a participatory process aretypically divided into two phases with adequate timefor the public to learn about constitutional issuesbefore they are consulted on key constitutionalissues—often it is the civic education program thatassists in shaping the constitutional issues placedbefore the public during the consultation phase.The Commission’s reports, produced withthe assistance of the UN, were submitted to the16

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtConstituent Assembly but were ignored by allmembers. xli A few Assembly members stated in theplenary that they did not trust the reports becausethey were the product of UNTAET rather than ahomegrown consultation process.The FRETILIN leaders in the ConstituentAssembly proved to have limited interest in aparticipatory process. Because of sustained pressurefrom civil society and the media, the CA agreed tohold a one-week public consultation process on itsagreed-upon draft from 25 February – 1 March 2002.On 20 February 2002, Bishop Belo, speaking in atelevised public discussion on the constitution,referred to the one-week consultation schedule asakin to “teasing” the public. Both Bishop Belo andXanana Gusmão called for the Constituent Assemblyto devote the month of March to a nationwide publicreview of the draft constitution. Gusmão argued thathe did not think it was necessary to have theconstitution adopted by Independence day because"A constitution is the pillar of a nation. It is themother of law, and it should be properly legitimizedby the people."FRETILIN leaders in the CA, however,considered the one-week consultation a compromise,in view of their electoral victory. Thirteen groups ofCA members traveled to each of East Timor’sdistricts. The Asia Foundation and UNDP supportedadvanced distribution of drafts of the constitution ineach of the languages and a magazine summarizingthe drafting process and the main articles of theconstitution.Because a consultation process had not beenplanned prior to the establishment of the CA, it was adifficult task to get the funds and resources necessary,including the cars, helicopters, per diem,communication devices, etc. The UN securedtransportation and The Asia Foundation assisted tosecure emergency funds. Because of the rush andpoor Secretariat planning, many citizens received thedrafts the day the Assembly members arrived. Insome areas, the public ripped up their copies of theconstitution in protest and declared the process asham because there was no time to read the draft,prepare comments and properly participate.Each team of Assembly members had adifferent methodology for holding consultationmeetings. Some spent the entire period explaining thedraft to the public. Others listened to hundreds ofcitizens come forward to give their views on the draft.This resulted in a skewed process with only somegroups having commentary to report to the Assembly.Even after the one-week consultation period, the CAcontinued to debate whether the draft would be opento change based on the public’s comments.The collation, analysis and recording of viewsrequire time and specific technical expertise. The EastTimor Constituent Assembly did not decide how toconsider the views until they returned to Dili. SomeCA members, at least in private, still maintained thatthe process was an exercise in public relations only.Nonetheless, there was public pressure to considerthe views that had been collected.It was decided that some of the suggestedrevisions would be put to a vote in the Plenary butmany that were too political or sensitive were notconsidered. Suggestions that were “soft” topics wereagreed upon and incorporated into the draft.Suggestions by the High Commissioner for HumanRights, constitutional experts from the AsiaFoundation and a few other commentators were alsoconsidered and incorporated into the final draft,particularly those that corrected inconsistencies withinthe draft or brought the draft into harmony withinternational human rights standards.In many post-conflict contexts the threat ofviolence looms, space for political dialogue is limited,warlords hold power and the ability of the UN tosupport the creation of political space is limited. EastTimor faced few of these challenges. There were nodangerous spoilers and even the diverse politicalfactions had united and called for a more openprocess. Nonetheless, the UN waited too long toconsider the structure of the process and to preparethe public to genuinely participate in the formation ofthe constitution that would give birth to their newnation.Civil society repeatedly wrote to the SecurityCouncil and the SRSG to urge for sufficient time andresources to allow for an inclusive and participatoryprocess but their pleas were ignored. If key UNofficials involved in the process had viewed directparticipation as an opportunity to lay the foundationfor transparent, inclusive and participatorygovernment, there would have been enough timeduring the transitional period to educate the public17

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtabout key constitutional issues. Instead, in a surveyconducted five months before the elections for theConstituent Assembly, only five per cent of thepopulation knew that the election was for the purposeof drafting a constitution. Most thought the electionswere being held to elect their first president and oversixty per cent had no knowledge that East Timorwould be drafting a constitution or if it already had aconstitution. xliiNonetheless, the East Timor process was animprovement on the Cambodian. The ConstituentAssembly deliberations were open to the public andthe media. Because of pressure from the media, thePresident of the Assembly held weekly pressconferences and all drafts of the constitution werereleased to the public.However, in the final analysis, while the EastTimor participatory framework created mechanismsthat seemed to replicate elements of other successfulprocesses, such as civic education, constitutionalcommissions, and consultations on the prepareddraft—these elements were not given sufficient timeor resources to achieve the full benefits of successfulparticipatory processes.The entire constitution was provisionallyapproved on 9 February 2002. Slight revisions weremade to the draft after the hastily conducted, oneweekpublic consultation process and the constitutionwas formally approved on 22 March 2002 by a vote of73 in favor, 14 against, 1 abstaining and 1 absent.Those voting against felt that FRETILIN had merelypushed through its constitutional agenda withoutseeking consensus on the draft. At that time, evensome within the FRETILIN party recognized that thenew constitution largely reflected their party’s agendarather than a consensus amongst the variousstakeholders.Afghanistan: Increasing the Degree ofRepresentation and ParticipationAlthough the Bonn Agreement established atwo-pronged constitution-making process—theestablishment of a Constitutional Commission toassist in preparing the draft and a CLJ to adopt thedraft—the TA revised this framework into a threestageprocess. The process was structured as follows:October 2002: Formation of 9-memberDrafting Committee and SecretariatMarch 2003: Submission of DraftingCommittee’s constitutional draft to PresidentKarzaiApril 2003: Establishment of 35-memberConstitutional CommissionJune-July 2003: Civic Education Program onConstitutional IssuesJuly-August 2003: Public Consultation onKey Constitutional IssuesNovember 2003: Release of Draft ofConstitution to the PublicDecember 2003: Convening of ConstitutionalLoya JirgaJanuary 2003: Adoption of ConstitutionKarzai appointed the nine-member DraftingCommittee in October 2002 to prepare a draft of theconstitution. It did not have a legal mandate and theCommittee largely conducted its work behind closeddoors and held few consultations with experts or civilsociety. The Committee presented its draft of theconstitution, which largely followed the 1964 AfghanConstitution, to the President in March of 2003. Bythis time, six months of the eighteen-monthtimeframe for the process had passed.The President did not appoint the thirty-fivemember Constitutional Review Commission until 24April 2003. The Review Commission was comprisedof Afghan legal experts, tribal elders, religiousscholars, and professionals specialized in such fieldsas economics and social sciences; seven of themembers were women. The ConstitutionalCommission was fairly representative but there werecomplaints that the best and the brightest in key fieldshad been excluded because of powerful politicalfactions wanted a specific person on the Commissionwho would be more likely to represent theirinterests. xliiiKarzai issued a Presidential Decree, whichmandated the following work plan for theCommission:18

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandt• facilitating and promoting public information onthe constitution-making process during the entireperiod of its work;• conducting public consultations in each provinceof Afghanistan, and among Afghan refugees inIran and Pakistan and, where possible, othercountries, to solicit the views of Afghansregarding their national aspirations;• receiving written submissions from individualsand groups of Afghans within and outside thecountry wishing to contribute to theconstitutional process;• conducting or commissioning studies concerningoptions for the Draft Constitution;• preparing a report analyzing the views of Afghansgathered during public consultations and makingthe report available to the public; and• disseminating and educating the public on theDraft Constitution.The Afghan Secretariat rushed to support theConstitutional Commission’s mandate; it establishednumerous departments including, administration,logistics, finance, IT, public education, publicconsultation, reporting, research, data processing,translation, elections, and protocol. The Secretariatestablished offices in eight regions of the country andin Iran and Pakistan. The Secretariat did a remarkablejob in supporting the Commission and responding tothe constantly evolving process, a lack of clarity abouttheir role and the legal framework at each stage of theprocess, and at times a lack of funds.One of the key aspects of the mandate wasrelated to public participation. Initially both UNAMAand the TA feared that a consultative process wouldbe hijacked by spoilers and could raise controversialissues with no easy way to resolve the problems.Constitutional advisors emphasized that the dangersof the process being hijacked or spinning out ofcontrol could be minimized by careful attention to thedetails of the process and the rules of procedures andthat experience had shown that participation nearlyalways waters down fundamentalist tendencies andinstead broadens the social agenda, such asenforcement of rights, including the right todevelopment and a fair distribution of resources.After Karzai agreed to undertake aparticipatory process in March 2003, there werealready obstacles to holding a successful consultativeprocess. First, the public was already highly suspiciousof what was perceived as a secretive process becausethe nine-member Drafting Committee had conductedtheir task behind closed doors. Second, the DraftingCommittee had prepared a draft that was not releasedto the public. The public felt the draft was beinghidden from them and the consultation process was asham. Third, the TA and UNAMA did not want toestablish an independent commission; it was to beunder the authority of the TA and led by the Chair ofthe former Drafting Committee (who also served asVice-President in the TA). And lastly, donors had notcommitted funds to the process because it was lackinga clear work plan and budget.The Commission, with the support of theSecretariat had only one month, from early May toearly June, to educate the public about constitutionalissues and the process and encourage the public toparticipate. The Secretariat partnered with aconsortium of NGOs which linked withapproximately 1600 persons to assist in getting outthe messages and these efforts combined attemptedto cover all of the provinces in the country. Thechallenges of conducting a civic education and publicconsultation process were immense, including poorinfrastructure, a high illiteracy rate, the difficulty ofreaching women and the disabled, and overcomingthe domination of local commanders the elite or landowning citizens in community meetings. The processwas too rushed to overcome all these obstacles yet theSecretariat distributed over 450,000 questionnairesabout key constitutional issues before theCommissioners traveled throughout the country toconsult with the people.From 8 June to 20 July 2003, ConstitutionalCommissioners formed teams of three—two men andone woman—and traveled to each region of thecountry and to Iran and Pakistan. The Secretariat’steams in the regions were tasked with holding focusgroup meetings with target groups such as women,religious leaders, farmers, youth, and village elders.Given the level of insecurity, the Commission largelyavoided open, public meetings where participants mayfeel intimidated by local commanders or warlords.Because of the rush, the Secretariat had little time to19

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandttrain the staff and this led to inconsistent applicationof the consultation plan.Participants were eager to meet with theCommissioners and traveled great distances to givetheir views, often at great risk. Women in particularknew they would be targeted for participating, but didso anyway. Over 15,000 citizens gave suggestions atconsultation meetings.Although the Commissioners were taskedwith listening to the public, some spent the majorityof the time lecturing or explaining the draft of theconstitution that had been prepared by the DraftingCommittee and slightly revised by the Commission.This draft was not shared with the public before theconsultations because it was decided that it waspreferable to encourage the public to share the issuesthey were most concerned about rather than focusingon the draft. After the views were analyzed andincorporated into the draft where appropriate, theCommission then planned to release this draft andexplain how the views were considered andincorporated. xlivThe Secretariat made a valiant effort to enterall of the questionnaires and views gathered from themeetings into a pre-designed data entry system.Approximately 100,000 questionnaires were analyzedand a report was prepared explaining the results ofthe views of the public. The views of the public didindicate the concerns of the average citizen aboutsecurity, a fair distribution of resources, access toeducation, and underscored that in general theAfghan population was respectful of the right tofreedom of religion.However, it was ultimately left to PresidentKarzai and influential members of his Cabinet todecide the content of the final draft of theconstitution and the final considerations were largelybased upon their political agenda. The views of thepublic were not given much weight in this finalconsideration. Hence, similar to the East Timorexercise, those gathering the views of the public didnot determine the final content of the draft. AfterPresident Karzai approved a final draft, it was notreleased to the public until 3 November 2003—approximately one month before the ConstitutionalLoya Jirga was to convene.The report explaining the results of theconsultations and how the views of the public wereconsidered was primarily distributed to delegates tothe Constitutional Loya Jirga. The original work planof the Commission included the Commissionerseducating the public on the final draft. Because of thelack of time and, for some of the Commissioners, afeeling of lack of ownership of the draft, this task wasnever completed.The Presidential Decree on the Convening ofthe CLJ, dated 15 July 2003, established the mode ofelection and appointment as well as the compositionof the 500-member body:• 50 experts appointed by the President, 25 ofwhom were to be women;• 344 delegates elected by the approximately18,000 former Emergency Loya Jirgarepresentatives;• 24 elected refugees from Pakistan and Iran;• 64 women elected by women—two womenper province;• 9 elected Kochis (nomadic tribes);• 6 elected Internally Displaced Persons (IDPs)from three provinces; and• 3 elected Hindu and Sikhs.The Decree ensured that women, minorities andmarginalized groups, such as internally displacedpersons, all had a seat at the table.Due to deterioration in security, it wasimpossible to hold the same sort of nation-wideelection of delegates for the 344 elected CLJ delegatesas had been conducted for the Emergency Loya Jirga.For the latter, approximately 19,000 districtrepresentatives had been elected, who then electedprovincial delegates to the Loya Jirga. For the CLJ,many districts were no longer accessible, so the sameapproximately 19,000 delegates formed an electoralcollege and were reconvened at provincial centers toelect CLJ delegates. While this narrowed somewhatthe representative base, the process was largely seenas transparent.Highly detailed rules of procedure weredrawn up with the assistance of comparativeconstitutional consultants, and these were closely20

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtagreed that the UN would supervise the governmentaladministrative structures, facilitate a ceasefire, disarmthe factions maintain law and order, repatriaterefugees, and promote human rights. The cornerstoneof UNTAC’s mission was to supervise, conduct andmonitor elections for a 120 member ConstituentAssembly. xlviiThe end point for the United Nations wouldbe the Constituent Assembly’s approval of the newconstitution and its transformation into the legislativeassembly, which would entail the creation of the newgovernment. xlviii The production of a constitution wasimportant to the international community—whichwas responsible for the 2.8 billion dollar price tag forthe UNTAC exercise—because it was to be the exitpoint for the United Nations. Security CouncilResolution 745 underscored that UNTAC’s mandatewas not to exceed eighteen months.On 29 May 1993, SRSG Yasushi Akashi,declared the elections for the Constituent Assemblyto be free and fair. UNTAC’s mission at the time wasbroadly considered a success. With the benefit ofhindsight, UNTAC is now regarded as only a partialsuccess, given that many elements of the ParisAccords were not implemented and the governmentcollapse in violence four years after the elections.However, as Simon Chesterman observes:The important variable is how one views thepolitical context within which UNTACoperated. If the purpose of the mission wasto transform Cambodia into a multipartyliberal democracy in eighteen months, itclearly did not succeed. If, however, onetakes the view that Hun Sen—who had ledCambodia from 1979 and later seized powerfrom his coalition partners in a coup fouryears after the 1993 elections—was alwaysgoing to be the dominant political force inCambodia, and that the purpose of themission was to mollify the exercise of thatpower through introducing the language ofhuman rights to Cambodian civil society,fostering the establishment of a relatively freepress, and taking steps in the direction of ademocratic basis for legitimate government,the mission was indeed a partial success. xlixObservers both within and outside the UNnow criticize the fact the elections in Cambodia werethe endpoint of the UN’s assistance to the country’spolitical transition. As a former UNTAC officialexplained, the “planning and management of theprocess after the election was disastrous,” because itdid not focus on how the new Constituent Assemblywould go about completing the task of adopting theconstitution. This official notes that at the time themission failed to truly understand that the corepurpose of the exercise was a political transitionrather than an election. lUNTAC’s Human Rights and InformationComponents did a laudable job reaching out toCambodians to inform them about the importance ofthe elections and human rights. A former UNTACofficial who had conducted training sessions onelections explained that the primary message of thevoter education campaign was about the importanceof each individual’s vote in choosing their newgovernment and the secrecy of that vote. However,the campaign did not emphasize that those electedwould be drafting a new constitution or attempt toeducate the public on constitutional issues.One very important aspect of UNTAC’slegacy was the Human Rights Component’s efforts tofund NGOs to assist with the civic and human rightseducation efforts. At the conclusion of UNTAC’smandate, civil society had blossomed from one NGOto over eighty registered NGOs or associations. Manyof these were funded through the efforts of theHuman Rights Component. To their great frustration,these NGOs and associations were shut out of theformal constitution-making process because there wasno role for the public and no established mechanismto engage civil society. li Nevertheless, post-adoptionof the constitution, many of these NGOs have takenthe lead in educating others about the contents of theconstitution and monitoring the implementation ofthe constitution. liiAfter the elections, the SRSG took theposition that the Constituent Assembly was asovereign body and that therefore UNTAC would notinterfere in its deliberations. Although UNTAC didoffer to provide assistance, UN technical advisorswere not formally accredited to the ConstituentAssembly and had limited access. However, theConstituent Assembly had little constitutional or legalexpertise within in its ranks. Because of the overtwenty years of conflict, in particular the Khmer22

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtRouge’s targeting of intellectuals, there were scarcehuman resources in the country. UNTAC staff didnot have offices in or near the Constituent Assemblyto help the Cambodians to move forward with theprocess. UNTAC officials prepared alternative draftsof the new constitution but did not know how, or if,the drafts would be used. liiiUNTAC did not plan for the resource needsof the Constituent Assembly—the Assemblymembers did not have access to research facilities, alibrary or technical experts. UNTAC had focused onsecuring resources for the election but not for thedrafting process. liv This lack of planning resulted inmissed opportunities to lay a foundation fordemocratic institutions and practices—when theConstituent Assembly transformed into the newlegislature, it continued to lack basic resources thatwould have improved the capacity of members todraft and debate legislation. lvUNTAC was mandated to exercise itsauthority to ensure the implementation of the ParisAgreement. lvi However, because it did not have apost-election strategy, Prince Norodom Sihanouk andother key political elites in Cambodia set the agenda atthat point. Sihanouk arranged a meeting with theparties to form a coalition government outside thestructure of the Paris Agreement. Sihanouk alsoplayed a role in limiting UNTAC’s influence in theAssembly’s work, hiring a French legal expert toprepare a draft constitution for a ConstitutionalMonarchy. lviiUNTAC and the international communitywere extremely concerned about the closed-doornature of the drafting process, because they foundthat they “suddenly had little direct influence on whatwas the most important outcome of the entireUNTAC-led effort.” lviii UNTAC officials assumedthat because the Constituent Assembly lacked legalexpertise, UNTAC would provide them with either adraft of the new constitution or with draft provisions.Although UNTAC had little influence on the process,Sihanouk allowed UNTAC to draft the human rightsprovisions of the constitution because he perceivedthese to be the primary areas of concern to the UNand the international community. lixThe promulgation of the constitution on 21September 1993 and the formal establishment of theRoyal Government of Cambodia brought an end toUNTAC’s mandate as stipulated in the ParisAgreement. However, the weak implementation ofthe constitution, including the Hun Sen led coup in1997 and the subsequent flawed elections in 1998indicate that the declaration of success was premature.East Timor: A “Hands Off” Approach?After the 1999 referendum, the Indonesianmilitary launched a “scorched earth policy” lx whichcaused widespread violence and left nearly ninety percent of the country’s infrastructure burned to theground or severely damaged and valuable propertylooted. The Indonesian technocrats departed enmasse. An international peacekeeping force wasdeployed to secure the peace and the Security Counciladopted SC Resolution 1272 establishing the UnitedNations Transitional Authority in East Timor(UNTAET) and vesting it with all executive,legislative and judicial authority. The scope ofUNTAET’s mandate was unprecedented.The Security Council did not specify howauthority was to be transferred to an independentEast Timorese government. In April 2000, UNTAETinformed the Security Council that it was developing adetailed plan of how it would devolve governingpower to the East Timorese and that it wasestablishing benchmarks for UNTAET’s exitstrategy. lxi Similar to Cambodia, one of the keybenchmarks for the successful transfer of power wasthe election of a Constituent Assembly that woulddraft East Timor’s first independence constitution.Public hearings were scheduled in theNational Council (NC), East Timor’s appointedquasi-legislature, from 18–23 January 2001 about theform of the process. However, more than threemonths prior to the public hearings in the NC aboutthe design of the constitution-making process, theSRSG briefed the Security Council about how theprocess would proceed:“The major elements of the politicaltransition are clear. As things currently stand,our plan is to hold national elections in thesecond half of next year with a view toestablishing a Constituent Assembly. ThisAssembly will be tasked with drafting theConstitution, choosing the members of thenew transitional government and serving as23

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtan interim legislature. Upon completion ofthe Constitution, the Assembly wouldbecome the new National Assembly for anindependent East Timor.” lxiiSome members of civil society who wereinvited to attend the public hearings about theconstitution-making exercise publicly stated they feltthe hearings were a façade. Yayasan Hak, the leadinghuman rights organization in East Timor argued that:“So far there has been a rush, linked to thetimetable that relates more to UN priorities,and the priorities of some political leadersthan the priorities for the people to make uptheir mind. We need to be realistic. While wewelcome these hearings, most people willhave no opportunity to participate properlybecause they simply have not been given theinformation on which to make choices …We can not make mistakes, again and again,by calling consultation what is in effect aready made monologue between those thatare already making decisions on behalf of theEast Timorese people. And we certainly cannot make this mistake when it relates to theconstitution, which has to be a livingdocument reflecting how the East Timoreseas a people see themselves, relate tothemselves, and finally, after many centuries,govern themselves.” lxiiiThe NC’s Standing Committee on PoliticalAffairs requested the Political Department to adviseon options for structuring the constitution-makingprocess. In response, the Political Department drafteda “Working Paper” on the pros and cons of EastTimor using an unelected or elected constitutionmakingbody to draft the constitution. The WorkingPaper expressed a strong disposition toward anelected body that would make all decisions related tothe constitution. The Working Paper did not presentcomparative options of what types of bodies hadbeen used in other constitution-making processes.For example, the Working Paper did not note thatother countries had used a two-tiered structure: aConstitutional Commission to prepare the draft and aConstituent Assembly to adopt (similar to thestructures used in Eritrea, Ethiopia, Nicaragua, Brazil,and Fiji). The Working Paper presented the options asbetween either an unelected body or an elected bodyperforming all tasks, with no combination of the twoas an option. lxivHowever, a two-tiered process was acommon structuring of constitution-making exercisesbecause it had several advantages. An independentcommission or technical drafting body is often usedbecause it tends to be more distanced from politicalagendas and may allow for greater diversity of views,improved opportunities for consensus building, inputof experts and greater public participation.An elected body typically adopts and debatesthe draft and because it is elected by the people mayadd legitimacy to the final constitution. An electedbody that is representative and agrees upon the finalconstitution may also ensure that political elites feelownership over the constitution and may be morelikely to implement the constitution.However, the Working Papers did notdiscuss the pros and cons of such comparativeoptions and were in effect advocating for the positionthat UNTAET had already taken in the SecurityCouncil about how the constitution-making processwould proceed.The NC followed the advice of the WorkingPapers and the framework for the process wasidentical to framework political leaders had putforward and the SRSG had announced to the SecurityCouncil over four months prior. A coalition of nearlyall civil society groups in East Timor wrote to theSecurity Council to complain that UNTAET wasrushing the decision, that the East Timorese neededat least nine months to discuss the constitutionalissues at stake rather than the few months beingoffered by UNTAET and a few political leaders andthat the ninety day timeframe for drafting theconstitution would preclude any public participationor consultation. lxvAlthough UNTAET, in consultation with afew East Timorese leaders, designed the frameworkfor the political transition, including the elections andframework for the constitution-making exercise, itchose to take a “hands off” approach during thedrafting and debating stages of the constitutionmakingprocess. Because constitution-making is asovereign act by an elected body, the UN determinedthat it should not be seen as imposing a result.24

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtHowever, it did support the process in criticalways, such as assisting with securing funds toreconstruct a room appropriate for the convening ofthe CA (and the future legislature). The room allowedfor simultaneous translation, an area for the public, alibrary and Internet services as well as a sophisticatedspeaker system. The UN also ensured technicalinternational staff to assist with running the CA,including the Director and Deputy-Director of theSecretariat of the CA. These resources were criticalfor the establishment of the future parliament, whichwas up and running quickly because of the resourcesthat had been provided to the CA. This was animprovement from Cambodia where theparliamentarians had few resources and littleopportunity to develop their skills or researchlegislation.Neither the international Director norDeputy-Director of the Secretariat, who wereappointed by the UN, had experience in constitutionmaking.However, Portuguese advisors, who hadexperience in parliament supported the functioning ofthe CA and worked closely with the CA members.The Asia Foundation also provided constitutionalconsultants to be a resource. The consultants hadcomparative constitution-making experience and metseveral times weekly with the Director of theSecretariat and the President of the CA to provideoptions for how the CA could function and addressproblems. They also provided option papers asrequested to both the UN international staff and theConstituent Assembly members on how to structurethe constitution-making process. Advice was alsogiven about how to ensure the process wastransparent, such as holding weekly pressconferences, issuing daily press briefings and releasingdrafts of the constitution. The CA adopted theseoptions.The SRSG did not attend CA sessionsbecause he did not want to be perceived asinfluencing the process. UNTAET staff monitoredthe process and reported to him. When provisions inthe draft constitution violated human rights norms,UNTAET political staff were directed to quietly meetwith CA members to explain where the draft did notuphold international norms. The UN HighCommissioner for Human Rights, UNTAET’sHuman Rights Department, the Asia Foundation andYayasan Hak also submitted comments on the draft.The Asia Foundation constitutional experts also meton a daily basis with CA members as well as UN andSecretariat staff to answer constitutional questionsand provide options for constitutional provisions.The CA did revise the provisions that violatedinternational standards and generally welcomedcomments on the text.The UN’s support to the constitutionalprocess did not fully support civil society calls for amore inclusive, transparent and participatory process.However, UNTAET improved upon theconstitutional assistance provided in Cambodia by:planning for the human and material resourcesneeded to run the CA; supporting the development oftransparent mechanisms in the CA; monitoring theprocess and effectively intervening to upholdinternational standards; establishing a foundation forthe future parliament, and; through UNDP providingpost-adoption education materials on theconstitution.Afghanistan: The Light FootprintThe TA determined the details of theconstitution-making process in consultation withSRSG Lakhdar Brahimi, who had the generalauthority to “monitor and assist in theimplementation of all aspects” of the Agreement. TheSRSG’s approach to supporting the TA was to ensurethat Afghan priorities led the mission’s assistanceefforts and that UNAMA bolstered Afghan capacity(both official and non-governmental) by “relying onas limited an international presence and on as manyAfghan staff as possible, and using common supportservices where possible, thereby leaving a lightexpatriate ‘footprint.’” lxviUNAMA defined its role in part as the leadfor all technical assistance, including coordinating allinternational support offered to the process. Allconsultants to the process were vetted throughUNAMA. This was to ensure that technical assistancemet the demands of the process and that theinternational community did not provide competingadvice to the constitution-makers. UNAMA alsoformed a Constitutional Support Unit (“SupportUnit”) initially comprised of a junior UN official andan Afghan administrative assistant with knowledge ofthe Afghan political context but no constitution-25

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtmaking experience. Although the SRSG and DeputySpecial Representative of the Secretary-General(DSRSG) provided overall guidance on the process,the Unit itself could not directly advise the AfghanDirector of the Constitutional Drafting Commission’sSecretariat about options to bring the skeletalconstitutional framework to life. The Asia Foundation(funded by the United States Agency for InternationalDevelopment) secured two constitutional consultantsto support both UNAMA and the Commission toexplore constitutional options for the process. lxviiWith the agreement of the UN, theconsultants conducted an initial assessment of theprocess and prepared memoranda on how the processcould be improved and structured. Shortly thereafter,the UN and the Secretariat provided the consultantswith an office both within UNAMA and theSecretariat. These consultants provided options paperon how to structure a constitutional process to bothUNAMA and the Secretariat. They also advised onoptions for the work plan, a nationwide civiceducation and public consultation process, thebudget, staffing and material resources required toimplement the process and drafting of suggesteddecrees, rules of procedure and codes of conduct.The Afghans were in the lead and making finaldecisions about the process but were being supportedto create a road map and learn about how othercomparative processes were implemented so theycould make choices about how to proceed.After the TA agreed to a detailedconstitutional roadmap, donors who were previouslynot forthcoming with funds and thereby delaying theprocess agreed to commit resources. UNDP wasresponsible for administering the funds. The AsiaFoundation also provided a financial consultant to theSecretariat to support it to administer thedisbursements and establish accountabilitymechanisms. The DSRSG created a constitutionaltask force comprised of senior staff from the AfghanSecretariat, the Constitutional Support Unit and thetwo constitutional consultants to coordinate andensure the process was progressing satisfactorily. TheDSRSG also held meetings with donors to providethem with updates on the process and urge them tofund the process.The SRSG did not have the degree of formalpower that the SRSG in either Cambodia or EastTimor had held, but he had a strong political advisoryrole and met regularly with the President of the TA,Hamid Karzai, to assist with guiding the peaceprocess. The SRSG had a unique position inAfghanistan. He had a close relationship withPresident Karzai and was held in great esteem byAfghans in general. Although the approach waslabeled a “light footprint” the SRSG wielded strongpolitical influence. He used his good offices to ensurethe constitution-making process stayed on track.The SRSG (with the support of the DSRSG,constitutional support unit and external constitutionalconsultants) hosted consultative discussions with fivesenior Afghan officials selected by President Karzaiwho represented key political factions in the TA. ThisAd Hoc Panel advised the President on a myriad ofdecisions, such as the election/selection of delegatesfor the Constitutional Loya Jirga, security andoversight to the process, the role of the UnitedNations at the CLJ, the role of the media andobservers, etc. The result of these consultativediscussions were put in the form of draft decrees orrules of procedure and revised as necessary orapproved and promulgated by President Karzai.As the process progressed, the AfghanSecretariat grew considerably, as did the numbers ofinternational actors supporting the process. UNAMAadded three additional staff to the Constitutionalsupport Unit and identified staff in each of the UNregional offices to support the process. As requestedby both the Secretariat and the TA, the AsiaFoundation also increased its support to theSecretariat and provided it with a data baseconsultant, media/graphic artist specialists,logisticians as well as security contractors to assistwith preparing the elections of the delegates andpreparations for the Constitutional Loya Jirga.UNAMA also ensured that the constitutionalconsultants lxviii advising on substantive content werecoordinated and providing harmonized advice. Thegroup was well conceived, because one of the expertshad in-depth political knowledge of Afghanistan andthe others had comparative constitutional expertise.Despite the depth of knowledge, the consultants hadlimited success in influencing the drafts of theconstitution. The Afghans were much more receptiveto receiving guidance about how to structure theprocess.26

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtUnlike the Cambodian and East Timorprocess, where the SRSG had stayed away from theformal proceedings in the Constituent Assembly, thepresence of the SRSG in Afghanistan was welcomedand he had an office at the CLJ. He was frequentlypresent at the CLJ and used his good offices toreconcile opposing views or advise on the position ofthe international community on suggested provisions.A team of UNAMA staff also maintained acontinuous presence at the CLJ to monitordiscussions in the committees, assist with complaintsof intimidation or violations of human rights, observeand support the voting process and advise on rules ofprocedure. The Asia Foundation staff were alsopresent around-the-clock to assist with logisticalarrangements and security.The “Light Footprint” approach did notnecessarily translate into less influence or fewerinternational technical advisors than in other cases,per se, since Afghans placed a great degree of trust inthe SRSG and the UN’s advice. The UN supportedthe creation of transparent, inclusive and participatorymechanisms. Though tight timeframes meant thattheir impact may have been somewhat limited,considering the serious security constraints andcharged international and domestic politicalenvironment, the degree of public participation andrepresentation was noteworthy.4. CONCLUSION ANDRECOMMENDATIONSSome form of constitutional review orreform is often a key component of comprehensivesettlements to a conflict and the transition from warto peace. Constitution-making provides a uniqueopportunity for the UN to encourage a process thatpromotes national reconciliation, consensus buildingand the creation of a national vision for the future ofthe country. In order for such a process to underpin adurable peace, the UN’s constitutional assistanceshould seek to support a nationally owned and ledprocess that is inclusive, transparent and participatory.The mandates of complex peace operations,such as those covered in this report, involve an oftenstaggering array of tasks which must be carried outsimultaneously. Security must be maintained, theeconomy kick started, human rights protected,humanitarian crises averted, and political dialoguepromoted. Everything is a priority; everythingdemands attention. Constitution-making is just oneelement in the midst of these Herculean endeavors,and in hindsight an analysis of this element alonecannot lose sight of the fact that decisions taken byUN and political leaders in the field are conditionedby a range of competing demands.Nevertheless, one of the central lessons ofUN peace operations over the past decade and a halfis that they have been mounted without a reliable baseof doctrine and guidance from which mission leaderscan draw even as they adapt and improvise on theground. The review of the UN’s role in theCambodia, East Timor and Afghanistan casesillustrates that this, as each approach has been ad hocand, to a significant degree, dependent on the choicesof the UN leaders in the field. In each case, the UNmissions could have planned support to the processmore effectively if they had access to resources andinformation about options for design andimplementation of constitution-making processes.A good example would be the doctrine,guidance, resources and expertise that have beencarefully developed and consolidated for elections.The Electoral Asssitance Division (EAD) of theDepartment of Political Affairs (DPA) in the UNSecretariat provides UN leaders in the field withassistance in the areas of needs-assessments; thedesign and implementation of electoral assistanceproject activities; operational strategies for electoralcomponents of peace-keeping operations; maintaininga roster of electoral experts able to provide technicalassistance on short notice and serving as the UN'sinstitutional memory in the electoral field.The EAD has also established networks withnon-UN institutes, electoral commissions, etc., thatcreates a much wider pool of expertise, resources andknowledge upon which to draw. In the constitutionalfield, many of the resources that currently exist areand will likely remain, external to the UN in academia,governments, non-governmental organizations, etc.What the UN can do, however, is ensure that it isprepared to and capable of drawing on that expertisewhile maintaining the necessary doctrine and guidanceand a core expertise in-house.27

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtTherefore, to provide more effective UNconstitutional assistance this report recommends thatthe UN appoint a focal point for UN constitutionalassistance that would: (1) develop doctrine andguidelines on constitutional assistance; (2) providetechnical expertise and resources; (3) document UNexperiences in the area of constitutional assistance todraw lessons learnt and reflect upon good practices.To minimize costs, the UN should also draw uponexisting external resources to support the aboveefforts.The conclusion is in line with the Secretary-General’s recent report “In Larger Freedom: TowardsDevelopment, Security, and Human rights for all” inwhich he underscores the vital role that the UN playsin mediating peace agreements and assisting in theirimplementation but notes that “there is a gaping holein the UN Institutional Machinery: no part of the UNsystem effectively addresses the challenge of helpingcountries with the transition from war to peace.” Akey aspect of addressing current peacebuilding gaps inthe system should be supporting national actors todesign and implement constitution-making processesthat promote longer-term peace and produce durableblueprints for political stability and broaderdevelopmentThe three case studies do not constitute abroad enough set of experiences from which to drawdefinitive lessons learnt, or from which to builddoctrine and guidance. For that, analysis of a largernumber of both UN and non-UN constitutionalexercises is necessary. Nevertheless, the cases dopoint towards some gaps in the UN’s capacity ofresources and some preliminary lessons that mightinform future planning of constitution-makingprocesses, including pitfalls to avoid. These aredetailed below.Legal FrameworkA prior legal instrument such as a peaceagreement or Security Council resolution, whichprovides the legal framework, defining principles andparameters for the exercise, mandates most postconflictconstitutional exercises. The legal framework,however, has differed in scope and detail from case tocase depending on the context and the objective ofthe constitutional review.There is no “once size fits all” framework fora process. Sometimes, such as in Cambodia, it will beuseful to have a more detailed framework thatincludes the principles to be enshrined in theconstitution. At other times, the framework should bemore skeletal, such as in Afghanistan, to allow forflexibility to respond to the inevitable changes in thepolitical context. Nonetheless, while stressing that theunique circumstances of the context will determinethe degree of specificity and the content of the legalframework, the following are some potential elementsto be considered for inclusion in the legal framework:• key constitutional principles or substantiveprovisions to guide the process and to beenshrined in the final constitution;• the mandate and work plan for theconstitutional organ/s;• the timeframe for the process, with aschedule of when key tasks should beaccomplished;• a declaration that the constitutional organ/sdrafting the constitution will be free ofgovernmental control;• transparent rules and mechanisms toestablish constitutional organs andappoint/elect delegates -- perhaps to appointan inclusive and technically competentconstitutional organ to draft the constitutionand a democratically elected body to adoptthe constitution, with at times specificprocedures for appointment or nominationof marginalized groups, members of civilsociety or those with specific professionalskills.• the mandate of a supportive administrativebody, such as a Secretariat;• provisions that describe the incorporation ofa participatory process that prescribessufficient time and resources to conductseparate phases of civic education andconsultation;• review and/or enforcement mechanisms toensure that the final draft of the constitutionincorporates any agreed upon principles;28

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandt• transitional arrangements if necessary andmechanisms for implementation of theconstitution;• provision for financial oversight of theprocess;• the role, if any, of the United Nations orinternational community.The legal framework should also be wellpublicized to promote transparency and gain publicsupport for the constitutional roadmap; this can assistthe public to be clear about the steps of the process,the objectives of the constitutional review or reformexercise, and their role. It may also provide the mediaand civil society with benchmarks to monitor whetherthe constitutional organs adhere to the framework, itsprinciples and work plan. This enhances theaccountability of elites to the people and in somecases, the international community, which may befinancing the exercise.In some contexts, the creation of the legalframework may need to be elite driven and theprocess a closed one because of the delicacy of thenegotiations and the high risk of return to conflict orviolence. However, even the decision on how theprocess is conducted can benefit from consultationswith civil society and the public where appropriate.The tendency should be for as open a process aspossible where this does not pose a significant risk –such as the case of East Timor. The process ofpromoting public ownership should begin as soon asfeasible because in deeply divided societies suspicionis high and transparency will lead to wider buy-in ofthe peace process and ownership of the constitution.Timetable for the ProcessThe legal framework in each of the casestudies determined the timetable of the process. Thepolitical context both domestic and international willalways have an impact on timetables. However, it isbroadly accepted that while timetables can put acertain amount of pressure on the parties and theinternational communities alike to move the peaceprocess forward, goals such as constitution-makingand elections require legitimate processes andsufficient planning and these processes should not berushed simply to meet pre-set dates. Deliberativeprocesses that promote national reconciliation andconflict resolution support a durable peace and taketime. In the cases discussed, opportunities to makethe process more genuinely participatory were missed(in particular in East Timor and Cambodia) becauseof tight timelines.Had the UN had at its disposal models andoptions for supporting a participatory process, thetime that was available could have been used moreeffectively (e.g., Afghanistan). While the timeframewill depend on the context and the objectives of theconstitution-making or review process, a betterunderstanding of the complex planning and logisticsneeded would have the potential to lead to moreappropriate timetables. Although, some countriesemerging from conflict may require shorter politicaltransitions because of security issues or otherimperatives, the ninety day time frames to draft,debate and adopt the constitution in East Timor andCambodia perhaps reflected less the peacebuildingneeds of the country than the desire to have anidentified end point.Structure and RepresentationConstitutional commissions or technicaldrafting committees should primarily be technicalbodies, yet with a membership that is as inclusive aspossible. The decisions of the body should not beheld hostage to the political aspirations of a fewpolitical elites but reflect transparent choices based onbroad consultations, consensus positions and wherenecessary compromises balanced with a respect forinternational standards. A democratically electedassembly, parliament or constitutional conferenceshould adopt the draft prepared by the constitutionalcommission or a similar body to legitimize theconstitutional order. In cases like East Timor, wherethere is a high risk that elections will lead to anadopting body that may reflect the views of a singleparty, special measures should be taken to promote amore inclusive adopting body. For example,provisions can be made for the representation ofidentity groups, civil society or those with particularprofessional skills. The mode of appointment forthese delegates should be transparent and wherepossible, can even be participatory.29

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtThe Cambodia and East Timor processeshighlight the potential pitfalls of prescribing the tasksof drafting, debating and adopting the constitution allwithin a constituent assembly. In East Timor,members of civil society had requested a two-stagedprocess (which is a common feature of constitutionmaking)with the formation of an appointedconstitutional commission or committee to preparethe draft and a constituent assembly to adopt. Theyargued that this would allow the people to share theirviews and free the draft from political influence.Given the political context (the likelihood of a singleparty dominating the Constituent Assembly), such aprocess had greater potential to be representative andencourage a broader set of stakeholders to seekconsensus on key constitutional issues. However, thedominant party presented its draft constitution beforethe Constituent Assembly and there were fewdiscussions that diverted from what was in the draft.East Timor is a fairly homogenous society and thismay or may not lead to conflict in the future, but inmore divided societies with larger minoritypopulations (e.g., Iraq) this result has the potential tolead to more immediate conflict.While elected constituent assemblies dohave claim to democratic legitimacy, in post-conflictsituations under tight time pressures the electorate hasin practice had insufficient information on theconstitutional issues at stake. Furthermore the firstpost-conflict elections tend to be highly referential tothe prior conflict, with voting concentrated onindividual leaders, ethnic groups or others—vestiges,in this sense, of the war. Political parties are weakand rarely put forward fully articulated constitutionalplatforms. Therefore elections in and of themselvesdo not necessarily serve as a sufficient conduitthrough which to carry the expression of the people’sconstitutional aspirations. These aspirations mustinform not just choices about who should govern forone term but the blueprint for society itself. Hence, astrictly democratic electoral model dependent onrepresentation through the ballot is usually notsufficient to capture public preferences in postconflictconstitution-making exercises.Afghanistan created a three-staged processthat had benefits and drawbacks. Both theConstitutional Committee and the ConstitutionalCommission were governmental and the memberswere appointed by President Karzai, which led tosuspicions that they were more accountable to agovernmental agenda than that of the people.However, the Constitutional Commission wascomprised of experts and was fairly representative ofthe diversity of the country (including women).Despite the Commissioner’s lack of independence,the consultations they held throughout the countryand in Pakistan and Iran were well received.The Constitutional Loya Jirga (the adoptingbody) was drawn from a traditional Afghaninstitution, the Loya Jirga or Grand Council, whichhad been used to adopt constitutions in the past; thisconferred greater legitimacy on the body from theoutset. There is no one model for adopting aconstitution and establishing adopting bodies that aredrawn from local models has potential to enhance thelegitimacy. In the Afghan context, the model wasmodified to include not only appointed delegates butalso elected. The security situation was volatile andthe electoral rules of procedure for the CLJ had to betailored to the circumstances. However, the rules(despite issues of security) led to a representative CLJthat was able to negotiate an instrument that assistedin stabilizing the country.None of the case studies used areferendum. This is not a requirement for legitimacy.If the process has led to a consensual constitutionalframework through a participatory, transparent andinclusive process, the end result will likely be aconstitution that enjoys legitimacy.SecurityAn argument could be made thatconstitution-making exercises should be sequenced tooccur after the demobilization, disarmament andreintegration process has been successfullycompleted. While this would be ideal, at times, theearly peace dividend of creating a negotiatedconstitution may outweigh other considerations, suchas in Afghanistan. Yet, in Cambodia, the failure toallow the peace process to move forward withoutsufficient demobilization contributed to the coup onlya few years after the adoption of the constitution.30

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtDirect ParticipationThe degree to which a process canincorporate direct participation (typically throughcivic education and consultation) will depend on thecontext. Political elites will by necessity play a majorrole in decisions on how to structure the new state(this is important both for peacemaking and forfuture implementation of the constitution) but wherepossible, the role of the UN should be to broaden thepolitical space so that the final constitution does notmerely represent the views of the warring factionsholding power at the end of a conflict. There is alsoan emerging legal argument that there is a politicalright to participate in a constitution-makingprocess. lxixIn each of the case studies civil society andthe public expressed a strong will to directlyparticipate. In Cambodia and East Timor coalitions ofcivil society members wrote letters to UN leaders tocomplain that the level of public participation was notsufficient. The degree to which the UN and politicalelites supported those demands was mixed.In Cambodia, the role of the public waslargely confined to casting a vote and the votereducation process primarily focused on how to voterather than educating the public on constitutionalissues. However, the UN’s support to theestablishment and development of non-governmentalorganizations did lead to greater public awareness ofthe constitution and continued monitoring ofadherence to the constitution post-adoption.The UN supported more direct participationin East Timor but missed opportunities to establishan effective participatory process. The civic educationand consultation process were conducted at the sametime and over only a one-month period. This did notallow the public to be sufficiently informed of theissues, to carefully consider the options or toadequately provide submissions or views. Nor did itpromote dialogue between communities. Themembers of the Constituent Assembly largely ignoredthe results of the consultations because the processwas UNTAET-led and the members did notparticipate in the consultation process (which is oftena transformative experience for political leaders).Largely because of pressure from civil society andsome of the smaller parties, the members held arushed one-week consultation process on the draft.The methodology to analyze the views was ad hoc andfew of the views expressed by the public wereincorporated into the draft. UNDP supported theEast Timorese to disseminate materials explaining tothe public their new constitution.In Afghanistan, UN constitutional assistanceled to greater direct participation than the other cases.Improvements included a civic education process thatwas conducted separately from the consultationprocess, led by the national actors tasked withpreparing the constitution. The Commission hadregional offices, the Secretariat was nationally led andowned and had adequate resources, the consultationswere primarily based on a questionnaire comprised ofkey constitutional issues for the constitution, theinputs were carefully documented and theCommission met with and partnered with civilsociety. One unique aspect to the Afghan process thatshould also be replicated was that the Secretariatcontinued to operate three months after theconstitution was adopted to educate the public abouttheir new constitution. In addition, the staff that hadgained experience in participatory methodologieswent on to support the final stage in the Bonnprocess, the elections for the legislature.However, because of an initial lag in planningfor a participatory process, only one month wasdedicated to each phase. Although approximately100,000 citizens submitted questionnaires or views tothe Constitutional Commission, there was littlefeedback to the public about how those views wereconsidered. Because a draft of the constitution hadbeen prepared prior to the consultations, the publicwas suspicious that their views would be sufficientlyconsidered.Lastly, the commissioners who consultedwith the public did not have a final say about thecontent of the draft because the ConstitutionalCommission was a governmental body under thecontrol of President Karzai. In the Afghan context,President Karzai was the main political force forreform and his control over the ConstitutionalCommission’s output may ultimately have been aguarantee against more fundamentalist forces at playin Afghan politics. Hence, while in principle onewould desire an independent commission, the Afghancase highlights that basic principles will inevitably31

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtLastly, and perhaps more importantly, UN fieldactors and national leaders should be sensitive to thedesire of the average citizen to participate. It is theauthor’s experience that those who have had theirvoices and their dignity suppressed at the point of agun will often walk for miles, travel by donkey fordays, and even risk their lives to share their views andaspirations for the future of their country. Althoughthe average citizen (who may be illiterate) does notexpress his or her views in constitutional language,their concerns are relevant to the future structure ofthe state. For example, complaints of no clean wateror schools in one particular community may lead toconsiderations of structures for decentralization thatwould allow communities to have more control overservices.Nationally Owned and LedNational ownership of the process is closelyrelated to participation because the public will feelownership over the constitution if they participate inits making. But, it also relates to the role of theconstitution-makers and UN constitutional effortsshould be guided by the principle of nationalleadership, to every possible extent. In Afghanistan,UN constitutional assistance was based on theassumption that the process should be nationallyowned and led. Following from the “light foot print”approach taken in Afghanistan, international actorsdid not assume roles that national actors could andshould assume. For example, in East Timor, a UNstaff member directed the Secretariat of theConstituent Assembly while in Afghanistan it was anAfghan, supported by technical assistance. Thisdisparity was similar for other aspects of the process.In East Timor, UNTAET established the publicconsultation process (although East Timorese heldthe consultations) while in Afghanistan it was anAfghan body supported by technical advisors.To ensure national ownership, the processshould be conducted at an appropriate pace to allowfor national actors to fully understand their role, learnfrom comparative experts about other experiences,weigh and deliberate upon options and enhance andbuild capacities where needed to effectively assumetheir responsibilities and implement the process.In both Cambodia and East Timor the UNtransitional administrators viewed the constitutionaldeliberations as something they should formallydistance from to ensure that the constitution did notappear to be imposed by the international community.It was necessary to clearly signal a shift frominternational “tutelage” to sovereignty. InAfghanistan, on the other hand, sovereignty wasvested in Afghan institutions from the outset and theSRSG was welcomed to play a more direct mediationrole in the Constitutional Loya Jirga. Through his goodoffices he mediated during stalemates betweendifferent sub-national groups and positivelyinfluenced the final content of the constitutionregarding international standards and the rights ofminorities and women. The role the SRSG played didnot jeopardize the public’s perception of theConstitutional Loya Jirga as a sovereign body or thefinal constitution as an Afghan drafted and negotiatedinstrument.Perhaps in contexts where the UN issupporting locally led processes, local actors may bemore welcoming of the role of the UN as a mediatorduring constitutional gridlock and more open toreceiving advice. Of course, the degree of trust thelocal actors have in the SRSG or his or her politicaladvisors will also affect this decision.Technical AssistanceMaking a constitution is a complex operationwhich requires expertise on national politics,institutional reform, electoral procedures, budgets,procurement, logistics, civic education campaigns,consultative processes, IT, public relations (for theleaders of the constitution-making bodies),comparative constitution-making options, conflictresolution, technical drafting, rules of procedures forassemblies, security arrangements, diplomacy, donorrelations, etc. It is the author’s experience thatnational actors are generally welcoming of technicalexpertise in these areas if it is offered in a fashion thatrespects their role in leading and managing theprocess. Also, often both international actors andnational actors are not aware of the complexity ofimplementing the process and providing initialoptions papers describing types of assistance that maybe needed is very helpful.33

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtIn Afghanistan the UN coordinated technicalassistance and worked with the national actors toensure that persons with the right types of expertisemet their assistance needs. The UN also coordinatedsubstantive input by constitutional advisors to ensureharmonization and facilitated the provision of optionspapers that were translated into Dari and Pashtu. InEast Timor, the Asia Foundation also translatedoptions papers that the Constituent Assemblyrequested on key issues.Although it may not always be appropriatefor the UN to coordinate technical assistance, it maybe useful to provide the constitution-makers withadvice about how to best to make use of technicaladvisors and suggest what types of expertise may beneeded.T he constitution-makers can then make theirown assessment of whether they have all those skillsor external actors may be useful.If technical expertise is requested, the UNshould facilitate the provision of technicalassistance.As in Afghanistan, this will require linkingwith external resources because few of thesecapacities are currently located within the UN.provided the delegates with practice in usingconsensus-building methodologies and to help themreflect on their duties and responsibilities asrepresentatives of the nation.Implementation of ConstitutionMany constitutions remain merely on paperand are never implemented. For example, many ofCambodia’s constitutional provisions, ten years on,have not been implemented. The UN should provideadvice about constitutional provisions, mechanismsand transitional arrangements that may be useful tofacilitate implementation post-adoption, includingsuggested deadlines for completion of important tasksand reforms. In addition, constitutional assistanceshould not end with the adoption of a constitution.In Afghanistan, the Secretariat remainedoperative for three months to educate the public onthe draft. This was a positive development inconstitution-making. It would also be useful for someform of institution or commission to assist withinstitutional reforms and supporting governmentofficials to implement the constitutionAdoptionIdeally, the methods of adopting theconstitution will promote consensus building. In eachof the case studies the constitutional organ taskedwith adopting the constitution required that a twothirdsmajority pass the constitution. This largermajority encourages consensus building depending onthe make-up of the adopting body. In East Timor,because a single party dominated the ConstituentAssembly it did not have that affect. In Afghanistanthe emphasis in the rules of procedure was onachieving consensus and short of this, a vote wouldbe taken. There, the President of the Loya Jirga askedall the delegates to stand up and adopt theconstitution by unanimous acclamation.The Afghan delegates attended a one-dayorientation on the rules of procedure (led by theSecretariat and facilitated by civil society leaders)primarily to promote national unity and facilitateconsensus building in the Constitutional Loya Jirga.The sessions were held with smaller groups that wereintentionally diverse (geographically, ethnically and bygender). The orientation session was participatory and34

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtEndnotesi The United States Institute for Peace and the United Nations Development Programme recently examined 18 case studies of constitutionmakingprocesses in primarily post-conflict contexts and concluded that the process by which constitutions are made is as important as thefinal content. See also, Jamal Benomar “Constitution-Making after Conflict: Lessons for Iraq” (2004) 15 (2) Journal of Democracy.ii UN Secretary-General Report "In Larger Freedom: Towards Security, Development and Human Rights for All" (A/59/2005).iii See note 2.iv Ghai, Yash, Lattimer, M. & Said Yahia. “Building Democracy in Iraq,” Minority Rights Group International Report, United Kingdom, 2003 at 27.v There are in fact four Settlement Agreements which comprise “The Agreements on a Comprehensive Political Settlement of the CambodianConflict,” October 23, 1991, UN doc. A/46/608-S/23177; 31 ILM 183 (1992).vi For an overview of the peace negotiations see Steven Ratner, “The Cambodian Settlement Agreements,” American Journal of international Law,vol. 87, 1993.vii Paris Peace Agreement, annex 3. 1.viii Interview with former UNTAC official.ix Paris Peace Agreement.x Ibid. Annex 3, para 3.xi Interview with former constitutional consultant to the process.xii Ibid.xiii Ibid. Annex 5.xiv Reg 2001/2, Section 2, para 2.6.xv Ibid. para 2.4.xvi See generally, Section 2.2 on the public consultations in East Timor.xvii Interview with former UNTAET official.xviii See generally, Louis Aucion and Michele Brandt, “East Timor’s Constitutional Passage to Independence,” paper prepared for United StatesInstitute for Peace, Project on Constitution-Making, Peacebuilding and National Reconciliation (2003)xix The Conflict, Security and Development Group, A Review of Peace Operations: A Case for Change, London: Kings College, 2003, para 302.xx Agreement on Provisional Arrangements in Afghanistan, Pending the Re-establishment of Permanent Government Institutions.xxi Ibid. Section 1, Art 4.xxii Section 1, Art. 6, Bonn Agreement.xxiii See generally, the Bonn Agreement.xxiv Annex II, Bonn Agreement.xxv Interview with former Ponleu Khmer member.xxvi Ibid.xxvii Ibid.xxviii John C. Brown, "Khmer Democracy: Where's the Participation?" Phnom Penh Post, August 27-September 9, 1993, at 7.xxix Ibid.xxx Stephen Marks,” The Process of Creating a Constitution for Cambodia,” paper prepared for United States Institute for Peace, Project onConstitution-Making, Peacebuilding and National Reconciliation (2003), p. 9.xxxi William Branigin, “Cambodia Moves to Return Sihanouk to His Throne; Elected Leaders Said to Form Consensus on Monarchy,” TheWashington Post, Washington, D.C. Aug 26 1993, pg. A 18.xxxii Lor Chandra and Wency Leung, “Law and Order? 10 years later, corruption mars a constitutional attempt at democracy,” The CambodianDaily, September 26, 2003.xxxiii Ibid.xxxiv International Federation for East Timor, “Elections in the Context of Nation-Building Preliminary Report, ”Press Release distributed at apress conference at Yayasan Hak, Dili, Timor Lorosae, 3 September 2001.xxxv See the Report on the Political Transitional Calendar compiled by the Standing Committee of Political Affairs of the National Council (onfile with the Author), (hereinafter PAC Report).xxxvi Owning the constitution: An 0ath to Peace? Vivien Hart, lecture, Wed, April 30 2003.xxxvii See NGO Forum open letter to the Security Council, dated 17 March 2001.xxxviii Aucoin and Brandt, “East Timor’s Constitutional Passage to Independence,” p. 21.xxxixIn contrast, a percentage of seats in the Afghan Constitutional Loya Jirga were for women who were elected by women and womendelegates to the Constitutional Loya Jirga and were not beholden to patriarchal party structures. The women delegates had more successadvancing issues of concern to women.xl Interview with former member of Constituent Assembly.xli Aucoin and Brandt, “East Timor’s Constitutional Passage to Independence,” p. 35.xlii The Asia Foundation, East Timor National Survey of Voter Knowledge, p. 4 (May 2001).xliii An alternative would have been to establish an independent selection committee that would have allowed for recommendations andnominations from civil society and educational institutions. This may have alleviated the pressure on the President to choose Commissionersthat may have been favored by powerful political factions.35

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele Brandtxliv Although there is no one method of encouraging public participation, in the Afghan process, it would have been preferable if the fullCommission had been formed first and if its mandate required the body to conduct civic education and a public consultation process before adraft had been prepared. This would have led to fewer suspicions that the constitution was being kept from the public. By the time the fullConstitutional Commission held consultations, the public assumed it was hiding the draft and that the content was a foregone conclusion.xlv Paris Peace Agreement, art. 6.xlvi Ibid., art. 2.xlvii See Michael W. Doyle, UN Peacekeeping in Cambodia: UNTAC’s Civil Mandate (Boulder, CO, 1995). See also Steven R. Ratnerxlviii Paris Peace Agreement, Section I. art.12.xlix Simon Chesterman, You, the People: The United Nations, Transitional Administration, and State Building (Oxford University Press, Oxford, 2004)p.224.l Interview with former UNTAC official.li See Section 3.1 for a discussion of the role of the NGOs, in particular that of Ponleu Khmer, in the constitution-making process.lii For example, organizations such as the Khmer Institute for Democracy, Vigilance Human Rights of Cambodia, LICADHO and ADHOC.liii Interview with legal consultant to the process.liv Interview with former UN official.lv See Lao Mong Hay, Cambodia’s Agonizing Quest: Political Progress amidst institutional backwardness, in Safeguarding Peace: Cambodia’sConstitutional Challenge (Accord, November 1998); William Shawcross, Cambodia’s New Deal, Contemporary Issues Paper 1 (Washington:Carnegie Endowment for International Peace, 1994), p. 56, for a discussion about the role of the National Assembly as a rubber stamp in thelegislative process.lvi Paris Peace Agrement , Annex 1, Section A, para. 1.lvii Interview with legal consultant to the process.lviii Grant Curtis, Cambodia Reborn?: The Transition to Democracy and Development (1998) The Brooking Institute, p.13.lix Interview with former legal advisor to the process.lx UN Doc S/1999/976, Annex, para.1.lxi Open Briefing to the Security Council on East Timor, Sergio Vieira de Mello, Special Representative of the Secretary-General to East Timor(SRSG) and Transitional Administrator, 29 September 2000lxii Ibid.lxiii PAC Report.lxiv Ibid.lxv See NGO Forum open letter to the Security Council, dated 17 March 2001lxvi See The Situation in Afghanistan and Its Implications for International Peace and Security (Report of the Secretary-General), UN Doc A/56/875-S/2002/278 (18 March 2002), para. 98.lxvii Michele Brandt served as full-time constitutional consultant and Professor Yash Pal Ghai served as part-time constitutional consultant(Ghai was also serving as Chair of the Kenyan constitutional reform process).lxviii Barnett Rubin and Guy Carcassone coordinated and harmonized their substantive advice to the National Security Council and theConstitutional Commission.lxixSee generally, Vivian Hart, “Democratic Constitution Making”, United States Institute of Peace Special Report, SR 107, Washington D.C., 2003.36