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Citizenship, Local Autonomy and Universal Rights: Prospects for Timor-Leste

Presentation to Deakin University's "East Timor Studies Symposium", June 2005

By way of introduction and explanation, the proposals in this presentation are designed to have universal applicability. Whilst approval, disapproval and implementation is of course, a matter for the people of Timor-Leste themselves, and this presentation will try to be sensitive to that particular context, this is not a discussion born of postmodern abandon, nor of premodern cultural relativism. It is an introductory sketch to provide a falsifiable model of a social and political system which is meant to have general use. It will begin with a general definitional discussion of isocratic and pleocratic implementations of democracy and universal rights, particularly in reference to the Constitution of Timor-Leste, it will use theoretical perspectives derived from Thomas Jefferson, Hannah Arendt and Henry George, and finally, a tentative suggestion on how Timor-Leste can, with courage and imagination, provide leadership to a world where politics has become a synonym for "boring".

The particular conditions of Timor-Leste are well known. To briefly reiterate; a nation which experienced four hundred years under a colonial rule largely one of "benign neglect" and then suffered almost a quarter of a century of brutal military occupation from a neighbouring power; a nation where the GDP per capita was a mere $337 USD (purchasing power) upon the re-establishment of independence, where over three-quarters of the population do not live to see sixty and where almost one-third do not see forty; a nation where some 44% are under 15, where only 23.5% lived in urban environments, where adult literacy was just over forty percent, and where the mean years of schooling was less than four; a nation with some fifteen indigenous languages spread over three language families with significant use of foreign and introduced languages, one of which, of course, has made it to the status of an official "national language".

Of course, since 1999 there have been some substantial improvements to these figures, especially to those related to the extreme conditions of impoverishment, education and lack of infrastructure. Literacy has increased to almost 59%, and the GDP (purchasing power per capita) has increased modestly to $400 USD. GDP growth rates remain however remain extremely poor at a mere 1% per annum. In addition, there are genuine concerns that the high ideals and expectations from national independence have not been delivered. Evidence of this was apparent as early as December 2002, with the widespread riots throughout Dili which were initiated, at least nominally, by a lack of employment opportunities, distribution of wealth and calls for regional autonomy. More recently one can cite the recent decision, under political influence, to criminalise voluntary prostitution and enforce the teaching of religion in state schools, an action which will annoy Timor's international solidarity network who are overwhelmingly of a liberal, libertarian and secular persuasion.

No particular point of view is initially espoused here, except to note that these examples indicate that there is a serious conflict and a lack of elaboration in the Constitution of Timor Leste and its application. Of course, Timor Leste is hardly unique in this regard and there is, in all political systems, a somewhat of a time-honoured tradition of expediency and loose interpretation of meaning in the face of political pressure. Thus rather than address particular instances and examples, it is perhaps worthwhile to consider formal and procedural systems to reduce the effectiveness of contextual circumstances.

The fundamental principle of the Constitution of Timor Leste, indeed the very first section of the first part, describes itself as "a democratic, sovereign, independent and unitary State based on the rule of law, the will of the people and the respect for the dignity of the human person". These high-sounding ideals are of course problematic instantaneously as they are undefined. As is well known and oft-commented in political theory, in one sense "democratic", means an equality of rights, an isocracy. In another, it means the rule of the majority, a pleocracy. The conflict between the two has invariably been resolved by political power or institutions. For the former, the isocratic element of democracy, there are minimal principles in the Constitution, for example sections 16 and 17 which ensure equality before the law, regardless of one's sex, the mythic category of "race", religion, ideological convictions and so forth . Section 30 which protects individuals from arbitrary arrest and section 38 which protects individuals from data collection without consent. The same concern of lack of formal definition also applies to the phrase "dignity of the human person". What is that supposed to mean? For some of a conservative disposition it means behaving in a manner which they deem to be stately, formal and becoming. A liberal or libertarian interpretation is that is more a state of being, having a life and the political rights which one determines as worthy of esteem.

It is notable that these are principles and definitions are almost invariably defined as "before the law", which is determined, as the Constitution describes, through principles of multi-party elections, universal suffrage etc. That is, the degree of practical equality is ultimately determined by a majority legal government. This is a pleocratic system of law, one where the will of the majority can and will overwhelms the natural rights of individuals. When this occurs however, and all nominally democratic nations have experienced it, the democratic, that is isocratic element of democracy, is distorted. Formal rights are curtailed by procedural instances and the principle of democracy, the equality of voices, becomes colonised or more appropriately, drowned out, by the clamour of the majority. It is at this point that the theoretical insights of Hannah Arendt, particularly from her work "On Revolution", are particularly insightful, and not for the only point in this presentation. Arendt was thoroughly aware that the very term "revolution" referred to a re-evaluation of conditions and a re-establishment of the principles of life; novus ordo saeclorum which is strongly tied her concept the purpose of human political action is freedom as a concrete political right which becomes embodied, with a degree of permanence, as constitutio libertatis. Now it is this area which the Constitution of Timor Leste lacks. By and large, the ideals and rights which citizens and other persons are supposed to enjoy and which the Constitution implies are enjoyed are not matters of fact, are not embodied, but are rather very much subject to the vagaries of a political climate.

If formal democracy is considered worthwhile and there is an opinion that the rights of citizens ought to be protected from sectional and temporary interests (even when those interests make up the majority) then constitutional protection, with its relative degree of permanence and authoritative strength, is requisite. Again we find inspiration in that most enlightened period of the history of the United State; the amendments to the U.S. Constitution that became known as the Bill of Rights. These documents constitute perhaps one of the greatest exhaustive legal examples of protection of private rights against the public realm and whilst they too are subject to legal interpretation (for example the constant use to restrict "freedom of expression" by use of the state's obligation to protect health and apparently "moral health"!) this does provide an additional layer of protection, with additional protections against the ambiguities of a purely procedural democracy. Now if a Bill of Rights is to be sought - and certainly Australia needs one at least as much as Timor Leste - then the obvious question relates to content.

Perhaps not surprisingly there has been substantial investigation in modern social and political studies as to what actually constitutes the natural rights of citizens and what freedoms citizens should enjoy that transcend the legislative disposition of the day. In part of course one will find a great number of the elements embodied in the Universal Declaration of Human Rights, to which Timor Leste is to be highly commended for actually incorporating into the Constitution in Section 23. However, in addition to these elements one can also make recourse to the practical application behind Jurgen Habermas' model of formal pragmatics, John Rawls' notion of justice as fairness and equality, Issiah Berlin's two concepts of positive and negative freedom, and of course, dating back to John Stuart Mill's principle of liberty and harm. The fact that there is now close to three hundred years of a fairly stable theoretical framework of what constitutes the natural rights of citizens above their governments should indicate that it is well overdue and universally applicable. To summarise simply;

1) All citizens of adult reasoning are entitled to engage in any act that does not impede or deprive others of their ability to act.
2) All citizens of adult reasoning are entitled to engage in any act with other participants with mutual and informed consent.

There it is; a two point Bill of Rights that effectively limits the ability of any legislation to intervene in the lives of consenting adults. These principles should provide the legislative limits of governmental power over an individual and should be embodied in a Bill of Rights for Citizens, in Timor Leste, in Australia and indeed everywhere. Where they do not exist, a society cannot claim to be free, and nor can their citizens claim that they have political freedom. For political freedom is not a relative concept, it is not one which differs according to place and time or circumstances. It is a universal and timeless imperative and, as Hannah Arendt put it, the very reason human beings engage in political action; to establish freedom. The fact that such an implementation has not occurred anywhere in the world undoubtedly is a source of enormous frustration and annoyance to those who consider that they have the right and responsibility to make decisions concerning there own bodies and consider that others also have these rights and responsibilities.

Assuming for a moment a secular miracle, where human beings in political institutions remain sufficiently human to establish universal rather sectional rights, a just question then arises, on what becomes the legitimate role of government. The answer to this question is already available and indeed, is already in the Constitution of Timor Leste, although one has to look carefully to find it because it is trivially obvious. The nation is the Democratic Republic of Timor Leste and it is the second half the equation that is important here; the republic, or res publica, "the public thing". If the private lives of acting and interacting citizens is protected from administration by the State, then the State is left to administrate the operation of "things" or, to paraphrase the words of Saint-Simon where "the government of people is replaced by the administration of things". However, to involve people in this administration of things, to give them responsibility and control over their own lives certain institutional forms needs to be introduced and once again there is a disparity between the claims of the Constitution of Timor Leste and its implementation.

Popular administration and participatory democracy requires decentralisation. Of this there can be no practical doubt whatsoever. In those rare historical instances where human beings have actually considered engaging in the administration of life in their own manner in total disrespect of their nominal rulers or for that matter, of would-be revolutionaries, it has been the natural formation. Modern examples are clearly evident from the organisation of the communities in the American revolution, the commune of Paris, the Russian soviets, the Ratesrepublik of the Bavaria, the Italian works councils, the Hungarian councils and so forth. Indeed, in every single instance where citizens have decided to take the "administration of things" into their own power and with their own responsibility the organic result has been the same. If, and only if, a society wishes to establish in a democratic and participatory system of government is to replicate these organic models in an institutional manner. This became a particular and almost obsessive interest to elder Thomas Jefferson, as he realised that the only way to protect and nature the victories of the American revolution was to ensure the means of their regeneration on an institutional level and as such he spoke of "breaking of the Councils into Wards" into "natural republics" which would be governed by the "Rule of One Hundred" families. The latter, of course, is a nominal figure. Any number where individuals may directly participate in the decision making processes is adequate.

Now in part, there is a commitment to these suggestions in the Constitution of Timor Leste. One notes of course the oft-referenced section 5 where it is clearly stated that the State respects the principle of decentralisation. But once again, it is a lack of elaboration which makes this constitutional guarantee somewhat of a fiction (indeed, according to some, a profound fiction). The empirical results are of course quite clear. The nation's infrastructure, wealth and administration is overwhelmingly centralised in Dili. It is quite literally, the nation's capital in the most capitalistic sense, and the court (from the French word "coeur", or heart), in the feudal sense. However it is not as if East Timor doesn't have pre-existing some institutional forms and cultural realities and traditions which would allow for decentralisation. With thirteen districts, and sixty-five subdistricts there is certainly formal opportunities for a decentralisation of power from the top down. But it is also at the tradition of local management and participation from the suco-level upwards provides perhaps even more exciting opportunities. For the suco is a realistic size for participation and engagement, where citizens can take the opportunity to engage in the "administration of things".

Of course, the other use of such decentralisation is that it has profound importance for the establishment of confederate relations and the provision of regional autonomy. This is of particular importance to Timor Leste, for it is a complete fiction to suggest that there is a unitary culture in this unitary State. Cultural norms are established by shared symbolic values of which language is the most important, and to put the circumstances into rather blunt terms, Fataluku is not Kemak is not Hakka, regardless of shared national aspirations or common human interests. In order for a culture to survive and grow it requires the capacity to ensure that the shared symbolic values are maintained. Decentralised power contributes greatly to this process, and the example of Australia, where there are hundreds of dead cultures or the remains phrases and terms, is stark testimony to what happens when it doesn't occur. Indeed, in a multi-language nation, the confederate model (such as Switzerland) has been shown as an ideal method of governance to ensure that one culture does dominate others unfairly.

A further and perhaps most controversial proposal of the confederate model is that suggestion of Thomas Jefferson's that the "natural republics" be responsible for defence and policing through a militia structure. Lest that anyone think that this would cause a "thousand warring nations", the entire principle of confederacy is that the "natural republic" gives up some of its autonomy to a shared responsibility and thus acquiring greater strength without losing its autonomy. Whilst the Constitution of Timor Leste provides for a differentiation between defence forces, policing and "the Superior Council" (sections 146, 147 and 148 of the Constitution), this distinction does run contrary to the experience of the people of Timor Leste in the establishment of national liberation where all (or nearly all) citizens were part of the clandestine movement. They already understand, perhaps greater than any other nation on earth, the idea of local organisation for civil defence and upholding the peace. Establishing a specialised class of armed individuals invariably means at some stage that those armed individuals will turn on their own population and invade others; all standing armies become invading armies and all police forces will, eventually, shoot their own people. In contrast a militia structure is well known for its capacity to defend territory and its complete inability to invade - surely the ideal army for people who love peace! It is important to note the primacy of U.S. militia structure was only removed following the failed invasion of Canada in 1813.

Finally, another practical means of democraticisation and decentralisation of power is the very practical importance of economic power and economic development. In this particular instance once again there is a universal principle which is particularly relevant to Timor Leste is the principle of common and equal ownership by all citizens of the natural wealth of the nation. If Timor Leste is to compete economically as a developing nation, to attract investment capital, to encourage productivity among its workers and to protect its precarious natural environment then the taxation burden must be reflect those objectives. Economists almost universally give the same answer here; reduce to the barest minimum, and preferably zero, the taxation on labour and capital - and increase, to the unimproved market value, a rental on all natural resources. Not only does this encourage people to put their economic energies into real development, it ends speculation on resources (especially land) and ensures that production is carried out with the minimal damage and use of natural resources. There is, of course, there very obvious benefit that resources are not a type of wealth that is subject to high compliance costs or hiding. Again it must be stated that Sections 144 and 145 of the Constitution do not provide for the natural rights of resource ownership and common wealth of Timorese citizens.

As mentioned at the beginning, this presentation can only hope to provide an introductory sketch on how particular principles of universal rights, local autonomy and common wealth have particular relevance to Timor Leste and how they could, potentially, be practically implemented. There is no pretence here that the model just outlined is by means complete or beyond further enunciation. Indeed, the entire point of positing these suggestions is to encourage further debate on both the principles and the possibilities. Nevertheless it is important at this concluding point to reiterate the key concern; that there is an imperative to define more strongly the natural rights of all citizens of Timor Leste and the formal organization of their State; that this is not the case at the moment, leading to the difficult situation where universal rights and organizational forms will be dependent on sectional interests and the political vagaries of the day. This is not in the interest of Timor Leste's long term future, or in the interest in its citizens. For their sake, it is imperative that the Constitution be amended to provide greater certainty.