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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
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