Introduction
The ‘liberal peace’Footnote 1 project has dominated state-building operations since the end of the Cold War.Footnote 2 This project is based on the theory that liberal democratic states are more inclined to respect the rights of their citizens and less likely to go to war with democratic neighbours.Footnote 3 These state-building operations have consequently aimed at institutionalising its main tenets – democratisation, the rule of law, human rights, and free-market economies – often via a new constitution.Footnote 4 However, there is a growing literature which critiques the liberal peace project, and the state-building operations undertaken in its name.Footnote 5 At one extreme, these criticisms essentially agree that the liberal peace should be institutionalised, but are critical of the method by which state-building missions have sought to achieve this.Footnote 6 At the other extreme, they are critical both of the liberal peace project (particularly of its imperialist and capitalist motivations) and its state-building methodology.Footnote 7 Lying in between are critiques which take a reflexive view of the project and its state-building methodology, by seeking to ensure that both reflect the particularities of the societies in question.Footnote 8
These critiques converge on the emerging consensus that state-builders should seek to engage in ‘unscripted conversations’Footnote 9 with ‘ordinary people, in their own everyday’Footnote 10 about the design of their state. This argument owes much to anthropological and sociological studies of the disconnect between the international discourse of the liberal peace and the state institutions that it introduces, as compared to indigenous sociopolitical practices that remain dominant, particularly in largely rural, subsistence-based societies.Footnote 11 While anthropologists tend to describe such practices as ‘customary’ or ‘traditional’, the term ‘local’ is used in recognition that these practices are not immutable relics of the ‘pre-contact’ past, but have instead been transformed as a result of colonisation, globalisation, and intervention.Footnote 12
The literature posits that holding conversations to consult ordinary people will result in a ‘post-liberal’ or ‘liberal-local’Footnote 13 peace project. Such a project recognises the ‘hybridity’ of ‘diverse and competing’ liberal and local sociopolitical institutions and practices that ‘co-exist, overlap, interact, and intertwine’.Footnote 14 By engaging with local populations, the liberal-local hybrid peace project implicitly recognises that liberal democracy has not entirely displaced local sociopolitical practices, which continue to dominate the day-to-day lives of millions of people.Footnote 15 Liberal peace state-builders have tended to use OrientalistFootnote 16 assumptions to ‘misrecognise’ and ‘delegitimate’ these practices, by describing them as ‘“mere” customs, uncivilized, savage, the lawless state of nature, terra nullius’.Footnote 17 However, these practices are ‘not simply dead forms inherited from the past’, but are instead collectively created ‘social achievements’.Footnote 18 Rather than viewing local practices as hurdles to state-building, the liberal-local hybrid peace project focuses on their ‘strength and resilience’.Footnote 19 From this perspective it argues that it is possible to construct alternative methods of liberal state-building which draw on, and work with, embedded local sociopolitical practices to achieve ‘mutual engagement’ between them.Footnote 20 In particular, while liberal peace state-building has focused on institutionalising the liberal emphasis on individualism, a liberal-local hybrid approach provides space to recognise that communalism, custom, needs, and welfare are valued aspects of everyday life in many societies.Footnote 21
The literature has not progressed far beyond speculation about what a liberal-local hybrid peace project may offer, and there have been few studies of practical attempts to undertake such a project.Footnote 22 Therefore, one of its leading proponents has argued that ‘[a] research agenda is needed which engages with an understanding of the dynamics of the relationship between the liberal and the local, and of the interface between the two in terms of everyday life for local communities and actors, as well as for more abstract institutional frameworks’.Footnote 23 The study outlined in this article takes up this agenda by applying the literature to the case of Timor-Leste.Footnote 24 It seeks to provide some preliminary answers concerning the practical ways in which a liberal-local hybrid peace project may develop, which it is hoped moves the debate beyond the theoretical realm.
Timor-Leste is a good case study against which to test the literature relating to the emergence of a liberal-local hybrid peace project, because in many ways it was a paradigmatic example of the liberal peace state-building that this new literature seeks to critique. Liberal peace state-building operations had previously been attempted in Cambodia and Liberia, and were ongoing in Bosnia and Kosovo at the time that the operation began in Timor-Leste in 1999. However, Timor-Leste had several unique characteristics. The state-building operation was working towards the clear political endpoint of independence, without a substantial external threat. After fighting a 24-year resistance campaign the population was also relatively united, and while there were prominent political actors and organisations, the state-level political landscape was free of formal institutions. The operation was also the ‘most expansive assertion of sovereignty’ ever assumed by the UN.Footnote 25 Therefore, in 1999 Timor-Leste arguably constituted the best case in which a state-building operation could be expected to implement the liberal peace project. Indeed, at independence in 2002 Timor-Leste was widely heralded as a liberal peace state-building success story, from which lessons could be learnt for the conduct of other state-building operations, such as those in Afghanistan and Iraq.
Consequently, there have been numerous studies of the state-building operation in Timor-Leste. To set the scene, this article begins from the same starting point, by describing attempts to institutionalise the liberal peace and considering the four main challenges that have undermined these attempts. It agrees with previous studies that, due to the challenges posed by the fragmented subsistence-based society, these attempts resulted in the creation of shallowly rooted and poorly understood liberal state institutions that were disconnected from the majority of Timorese, who continued to follow their local practices.Footnote 26 However, as Timor-Leste was widely touted as a success from which lessons could be learnt, it is important to reflect not only on the state-building operation and its immediate aftermath, but also on how the state has functioned and developed since. Such a reflection may challenge some of the initial lessons and offer new ones. Therefore, this article undertakes an in-depth analysis of the ways in which the state has increasingly sought to engage with local practices. It argues that this gradual engagement has been motivated by a recognition of the need to adapt liberal state institutions so that they make sense to the people they seek to govern. This article concludes by arguing that a liberal-local hybrid peace project has emerged, which offers more promise than institutionalising liberal peace in Timor-Leste and similar post-conflict societies. It then identifies further ways in which such a project could be pursued in Timor-Leste, and identifies generalisable insights that offer lessons for both the literature and for ongoing and future state-building operations.
Liberal peace state-building in Timor-Leste
This article does not undertake a detailed discussion of the state-building operation undertaken by the UN Transitional Administration in Timor-Leste (UNTAET) from October 1999 to May 2002. Instead, it focuses on the implications of that operation, and more specifically on the attempt to institutionalise the liberal peace via the new Constitution. The Constitution was adopted by an elected Constituent Assembly on 22 March 2002, and came into force when Timor-Leste became independent on 20 May 2002.
The Constitution begins with the liberal goal that Timor-Leste is to be a ‘democratic, sovereign, independent and unitary State based on the rule of law, the will of the people and respect for the dignity of the human person’.Footnote 27 To that end, it entrenches a comprehensive range of human rights protections.Footnote 28 It specifies that Timor-Leste is to be a constitutional democracy, in which political power is divided between a popularly elected president,Footnote 29 an elected parliamentFootnote 30 and an executive appointed by the party (or coalition of parties) with a parliamentary majority.Footnote 31 The Constitution enshrines democratic elections as the main way in which citizens legitimise the state,Footnote 32 based on a system of proportional representation.Footnote 33 There is a single national constituency,Footnote 34 with members of parliament elected through closed, fixed-order plurinominal lists presented by political parties.Footnote 35
The Constitution provides that state administrative institutions should be ‘structured to prevent excessive bureaucracy’.Footnote 36 This reflects the liberal emphasis on a ‘small state’.Footnote 37 The Constitution also officially sanctions the court system,Footnote 38 the new army (the Falintil-Forças de Defesa de Timor Leste (F-FDTL))Footnote 39 and the new police force (the Policia Nacional de Timor-Leste (PNTL)).Footnote 40
In addition, the Constitution requires the state to engage in administrative decentralisation.Footnote 41 The independent government inherited the administrative institutions adopted by UNTAET, which were based on administrative divisions implemented by Indonesia. Timor-Leste is divided into 13 districts and 65 subdistricts, each headed by a centrally-appointed administrator. The subdistricts are further divided into 442 sucos (villages) which are made-up of 2,225 aldeias (hamlets).Footnote 42 At independence suco and aldeia heads were largely selected according to local sociopolitical practices, with sucos and aldeias recognised merely as administrative divisions, rather than as formal institutions. Since independence state administrative institutions have followed a highly centralised approach and have devolved little power and few resources. Consequently, state administrative institutions have hardly any reach beyond the capital, Dili, which means that the majority of the population receive almost no state services.Footnote 43
The Constitution also provides for political decentralisation. It states that local government is to be ‘constituted by corporate bodies vested with representative organs, with the objective of organising the participation by citizens in solving the problems of their own community and promoting local development without prejudice to the participation by the State’.Footnote 44 The progress of political decentralisation has also been slow. A Local Development Programme ran from 2004 until 2006, which saw pilot ‘local assemblies’ established in eight of the 13 districts. That was followed in 2007 by the Local Governance Support Programme. This Programme has designed policy guidelines to manage the introduction of a single tier of local government, whereby the existing districts and subdistricts will be merged into 13 municipalities.Footnote 45 It is intended that the municipalities will be delegated responsibility over certain service delivery functions, and that they will coordinate with the sucos. While the government mooted holding the first municipal elections in October 2010, they have been delayed until at least 2014.Footnote 46 The primary reasons for this delay are a lack of political consensus and concern about the slow progress of local capacity-building.Footnote 47
The Constitution states that the ‘economic organisation’ of the state is to be based on a paradoxical ‘combination of community forms’ with the liberal principles of ‘free initiative and business management’.Footnote 48 It also specifically recognises the ‘coexistence of the public sector, the private sector and the co-operative and social sector of ownership of means of production’.Footnote 49
Challenges to institutionalising the liberal peace in Timor-Leste
While the state-building operation was dominated by attempts to institutionalise the liberal peace, because Timor-Leste is a ‘new subsistence state’,Footnote 50 these attempts have faced four main challenges: the persistence of local sociopolitical practices, which undercut liberal state institutions; the fragmented society, which challenges the promotion of democracy; legal pluralism, which undermines the rule of law; and the subsistence economy, which limits the development of a free-market economy. As a result, there has been a gradual shift towards a liberal-local hybrid peace project, in which there is mutual engagement between liberal and local sociopolitical practices.
The most serious challenge to institutionalising the liberal peace has been the fact that more than 70 per cent of Timorese are rural subsistence agriculturalists, from whose lives the state is largely absent.Footnote 51 Yet this does not mean that Hobbesian anarchy reigns.Footnote 52 Instead, many Timorese continue to follow local sociopolitical practices centred on their suco and aldeia.Footnote 53 These practices had remained influential during the colonial period, as the Portuguese utilised a system of indirect rule and made little effort to promote political development.Footnote 54 Although Indonesia made more concerted attempts to entrench state institutions, local practices continued to be observed and were utilised by the resistance.Footnote 55 After Indonesia withdrew and before UNTAET established its authority there were effectively no state institutions or law, which meant that the Timorese had to rely on their local practices.Footnote 56 This situation continued in the years immediately following independence, with surveys revealing that, while people were aware that Timor-Leste had become an independent state, they believed there was ‘no law at present’,Footnote 57 or had ‘no idea’ what the Constitution meant.Footnote 58 These perceptions were partly due to the rushed nature of the constitution-making process, which allowed little time for public consultation or civic education.Footnote 59 Public knowledge has improved and most Timorese now understand what the state is, and what it can be.Footnote 60 Moreover, the Constitution is now referred to throughout the country as the ‘lai inan’, the ‘mother law’.Footnote 61 However, due to a lack of civic education there is little corresponding knowledge of what the Constitution actually says, or what the state institutions it creates are empowered to do.
In response, in 2004 the state began to formally engage with local practices. In recognition of the fact that it was not yet able to permeate rural areas and that local communities continued to provide the social support network,Footnote 62 the government sought to ‘legitimise’Footnote 63 local sociopolitical institutions. Democratic elections were introduced for aldeia chiefs, suco chiefs and suco councils (comprising the suco chief, aldeia chiefs, two women, two young people (one male, one female) and one elder).Footnote 64Suco chiefs were empowered to ‘lead activities’Footnote 65 in a very broad range of areas, including: ‘peace and social harmony’; ‘food security’; ‘protection of the environment’; ‘education, culture and sports’; and ‘maintenance of social infrastructure’.Footnote 66 The suco council was empowered to ‘promote debate on, and the planning, follow-up, and control of, activities to be carried out in the suco’.Footnote 67 After a change of government, in 2009 an amendment to the law saw suco chiefs become known as suco leaders, although the range of activities in which the suco leader was entitled to exercise power remained virtually the same. The mandate of suco councils was also clarified and enhanced, including giving the council increased power over planning, monitoring, and undertaking social infrastructure and development projects. The new approach also provided that suco leaders and council members should receive ‘an incentive’, including an allowance and fees to attend meetings, and that the government would provide sucos with ‘material and financial resources with a view to ensuring their proper functioning and development’.Footnote 68 In 2009-10 the new government also introduced the Pakote Referendum, which decentralised capital works projects, such as the building of schools, roads and health clinics, to the district level. In 2010–11 it introduced the Pakote Dezenvolvimentu Desentralizasaun to decentralise development programmes, such as water, sanitation, and housing, to the suco level.Footnote 69 In December 2010 the government held a meeting of all 442 suco leaders to discuss plans for further decentralisation.Footnote 70
The quality of local decision-making and development under the decentralised system has differed, because under the 2004 law the powers given to suco leaders and councils were broad and ill-defined.Footnote 71 In addition, the capacity of suco leaders to plan and implement projects varied, and until 2009 few resources were devolved to the local level.Footnote 72 There was also ‘limited oversight’ provided by the state government.Footnote 73 The fact that the new government has attempted to increase decentralisation, clarify the law, and improve the operation of local actors, suggests that it recognises that many Timorese closely identity with local institutions, which might in turn encourage them to develop a sense of identification with other state institutions.
Despite this, the sense of disconnection between the central state and people living in rural areas remains, which challenges another key tenet of the liberal peace: the promotion of democracy. Liberal democracy rests on the idea of the ‘social contract’,Footnote 74 which represents an exchange between the people and the state. On the one hand, the state's authority and legitimacy resides in the consent of ‘the people’ (the liberal idea of ‘popular sovereignty’) and their willingness to perform their duties to the state.Footnote 75 On the other hand, the state is expected to deliver public goods to its citizens and to perform the functions typically expected of states.Footnote 76 This presupposes that a state-wide political community – or ‘people’ – is present to enter into that contract. However, many Timorese subsistence agriculturalists are fragmented into their family uma (house) groups, where they ‘already have contracts of a more fundamental nature based on existential and ritual factors’.Footnote 77 These contracts are also based on necessity, as uma groups have become the main provider of public goods in rural areas. People are therefore involved in ‘a web of mutual obligations, and these obligations are much more powerful than obligations as a “citizen”’.Footnote 78
The formation of the social contract also relies on creating a relationship between people and their state. In democracies this relationship is typically manifest in the election of representatives to state institutions. While Timor-Leste holds regular elections, the formation of a relationship between people and their elected representatives has been challenged by the proportional, party-list electoral system. As this means that people do not vote for specific candidates, it has been criticised for undermining the accountability of parliamentarians and providing them with ‘no compulsion to listen to an electorate’.Footnote 79 However, the local dynamic of kinship ties and other social networks have slowly given rise to a de facto form of constituency, with parliamentarians well-known in their local area.Footnote 80 In addition, parliamentarians are allocated one day a week to visit their constituents or conduct party business.Footnote 81 While one study found that some parliamentarians are reluctant to use this day to leave Dili,Footnote 82 others frequently visit rural areas, particularly as an allowance scheme has been introduced as an incentive for them to do so.Footnote 83
The formation of the social contract has also been undermined by a lack of transparency and opportunities for public consultation and participation at the state level. This is despite the fact that the Constitution guarantees the ‘right to inform and be informed’,Footnote 84 guarantees journalists access to information, and guarantees that ‘every citizen has the right to participate in the political life and in the public affairs of the country, either directly or through democratically elected representatives’.Footnote 85 In particular, the first (2002–06) government was criticised as being ‘excessively formal and sometimes uncommunicative’.Footnote 86 The current government (2007-present) is more open, and has recently appointed a spokesperson to organise the dissemination of information through media releases and the new government website.Footnote 87 The government also conducts regular meetings with civil society groupsFootnote 88 and public consultation processes in relation to certain major laws.Footnote 89 However, consultation periods are usually short and little information is disseminated beforehand.Footnote 90 Indeed, problems of dissemination are so extreme that many state actors are themselves unable to access information relating to draft – or even adopted – laws. For example, many police continue to apply the Indonesian Criminal Code, despite the fact that the Timorese Criminal Code has been in place since March 2009.Footnote 91 The general public and civil society also have difficulty accessing information about state laws, because: draft laws are always produced in Portuguese (which is only spoken by 5 per cent of the population); many people do not understand the legislative process and the avenues available to participate in that process;Footnote 92 and draft legislation and policy papers are often kept from the public until critical decisions have already been made.Footnote 93 This lack of transparency and public participation also raises serious questions about the legitimacy of Timorese laws, as they are being applied to people who cannot understand their content, and who cannot give their informed consent to be bound by them.Footnote 94
Therefore, while liberal democracy exists on paper in the Constitution, the social contract on which it rests is weak. Consequently, liberal democratic norms are ‘very poorly understood’.Footnote 95 For example, the notion of ‘democracy has become widely identified as being antagonistic to “Timorese culture”’.Footnote 96 This is because local sociopolitical practices emphasise the need for consensus in decision-making, whereby everyone reaches an agreement and no one ‘loses face’.Footnote 97 In contrast, the adversarial nature of democratic decision-making is perceived to involve opposition and violence.Footnote 98 Indeed, a 2003 survey found that 34 per cent of respondents thought that while democracy ‘might work in the West … it won't work’ in Timor-Leste.Footnote 99 However, one government official found these claims ‘patronising’. He noted that since 1999 Timorese have felt increasingly free to criticise and question their political leaders, and that they had a sufficiently strong ‘opposition culture’ to vote to change the government in 2007.Footnote 100
Despite this, there is evidence that elections do not necessarily fit with local sociopolitical processes of leadership selection and representation. Indeed, local practices can ‘apply logic incompatible with liberal democratic principles’, as parliamentarians are often selected based on local or kin affiliations, patronage,Footnote 101 or as a result of their membership of liurai (royal) ancestral uma.Footnote 102 Indeed, while there is a gradual shift away from this, in many cases parliamentarians and suco leaders are only perceived to be legitimate if they hold authority in the local customary sphere, or are endorsed by local leaders.Footnote 103 In this regard, the majority of members of the parliament come from liurai families.Footnote 104 Even when liurai are not elected to government or suco positions, they often remain influential over community decision-making and continue to be consulted over important decisions.Footnote 105
While leaders chosen according to local customary logic might appear ‘arbitrary, self-serving, or parochial’ to liberal thinkers, they are also perceived to be ‘effective and legitimate’ by many Timorese.Footnote 106 This is important because ‘legitimacy is what people believe’, as opposed to what they have been told to accept as legitimate after democratic elections.Footnote 107 Moreover, local sociopolitical practices ‘can be participatory and consultative’, as local leaders tend to rely on the support of their community, rather than on force, for power.Footnote 108 This is not to imply that local sociopolitical practices are superior to liberal democracy, as participation is often determined based on age, gender, and status.Footnote 109 Local practices also developed to manage small-scale communities and would not necessarily translate well to the state level. Indeed, as more Timorese move to urban areas or access higher education, they have begun to openly criticise local practices and leaders. Yet this group remains small.Footnote 110
The third challenge arising from attempts to institutionalise the liberal peace relates to difficulties facing the establishment of the rule of law and the supremacy of state justice institutions. The state itself has done little to promote the rule of law. The first two presidents have been accused of cultivating a culture of impunity, as they both arguably breached the constitutional separation of powersFootnote 111 to suspend arrest warrants and release alleged war criminals. They have also offered amnesties in relation to certain crimes, and passed blanket pardons for convicted criminals.Footnote 112 While both justified these actions by arguing that it is more important to achieve reconciliation than punishment, this may have undermined the rule of law and the role of the courts and PNTL.Footnote 113 Indeed, all governments since independence have undermined the courts, most significantly by circumventing the Court of Appeal's ability to review the constitutionality of laws.Footnote 114
As the rule of law is weak, this undermines the enforcement of the comprehensive range of liberal human rights protections entrenched in the Constitution. The concept of ‘human rights’ is widely known – although not necessarily understood – and people frequently refer to their ‘right’ to perform an act or receive a service.Footnote 115 However, there are questions concerning whether many Timorese have developed an understanding of the rights to which they are entitled, the way in which these rights are to be protected and the parties against which these rights can be enforced.Footnote 116 This is partly because so many Timorese lack a contractual relationship with the state that they have not developed an understanding of their position in, and responsibilities to, the state and broader society.Footnote 117 For example, it is now common for people to claim that they have the ‘right’ to commit crimes.Footnote 118 This illustrates the danger in poorly-understood liberal principles being adopted too quickly, without allowing time for their social assimilation and understanding.Footnote 119
The main state justice institutions, the PNTL and courts, are also almost entirely absent from rural areas and functioning at only limited capacity in Dili and other urban centres.Footnote 120 As a result, many Timorese continue to rely on local justice systems to settle disputes and perform basic law and order functions.Footnote 121 Therefore, while many Timorese are aware of the state systemFootnote 122 and believe that it does have the potential to provide justice,Footnote 123 they cite inaccessibility, delay, and high costs as disincentives to utilising it.Footnote 124 In contrast, local justice systems are perceived to be more sensitive to local contexts, and to meet the practical considerations of accessibility, timeliness, and affordability.Footnote 125 Indeed, a 2008 survey found that Timorese are five times more likely to identify community leaders, rather than the PNTL, as the individual/institution with primary responsibility for maintaining security in their locality.Footnote 126 This is also partly due to the type of crimes that occur, as in rural areas levels of serious crime remain low. Instead, the most common offences are theft, land grabbing, and gender violence, which community leaders have traditionally played an important role in resolving.Footnote 127
In contrast to the liberal emphasis on individual responsibility, local Timorese justice systems focus on collective justice. According to this approach, families are held responsible for identifying solutions to a dispute, and local justice providers try to maintain community harmony. Consequently, settlements often entail payment of compensation, as well as oral or written oaths to undertake community service and not to repeat the offence.Footnote 128 These agreements are enforced by social sanctions and the widespread belief that ancestors punish broken agreements through means such as disease, death, or crop failure.Footnote 129 Timorese often distrust the punishment of imprisonment meted out by the formal system, since they cannot ‘see’ itFootnote 130 and because subsistence lifestyles are so harsh that many find it difficult to understand why perpetrators are imprisoned in Dili, where they have access to electricity, running water, and – thanks to the efforts of international NGOs – education and training.Footnote 131
However, local justice systems should not be accepted uncritically, as there are concerns over: the neutrality of decision-makers; the consistency of decision-making; and the treatment of women, particularly in cases of sexual assault and domestic violence.Footnote 132 Indeed, while local justice systems remain the preference for minor matters, survey evidence reveals an increasing preference for state justice institutions for serious matters (such as murder).Footnote 133 Yet even when serious matters are referred to the state justice system, the police often take ‘an ad hoc and pragmatic approach’, by encouraging victims to seek recourse through local justice systems and informal mediation.Footnote 134 As Timorese judges increasingly replace international judges in the courts, there are reports that they now informally incorporate customary compensation payments into their sentences,Footnote 135 in a move described as ‘legal pragmatism’.Footnote 136 There is also an increasing willingness to recognise out-of-court agreements reached through local justice mechanisms.Footnote 137
As the rule of law and state justice institutions remain weak, the state has pragmatically decided to engage with local justice systems. The same law that sought to legitimise local political institutions also empowered suco chiefs to ‘provide for the creation of grassroots structures for the resolution and settlement of minor disputes’ and to ‘promote the creation of mechanisms for the prevention of domestic violence’.Footnote 138 This law was amended in 2009, but the powers given to suco leaders remained the same.Footnote 139 This approach is in accordance with the Constitution, which provides for a law to be made to ‘institutionalise means and ways for the non-jurisdictional resolution of disputes’.Footnote 140 However, the formal recognition of local justice systems has been criticised as sending ‘mixed messages’ that may undermine the establishment of the rule of law.Footnote 141 The principle of the rule of law requires the universal and consistent application of the law by a formal regulatory system in which there is a clear hierarchy of law. As local justice systems coexist with state justice institutions and enforce customary, rather than state, law this results in legal pluralism.Footnote 142 This could have a detrimental effect on the rule of law, since it may result in inconsistent decision-making. Indeed, suco leaders sometimes reach different decisions in similar cases, or are perceived to be biased.Footnote 143 In particular, as the system currently operates it ‘does not serve the rule of law because it operates without any of the checks or balances’ as there are ‘no formal avenues of appeal and thus minimal accountability and transparency’.Footnote 144
The final challenge to attempts to institutionalise the liberal peace is the high proportion of Timorese who are subsistence agriculturalists. This limits the development of a free-market economy, inherent aspects of which are private property and individual ownership. In Timor-Leste's subsistence society ownership is generally understood communally. For example, the traditional land tenure system ‘recognises no private ownership of land, for land belongs to the lineage’.Footnote 145 This provides members of the lineage with the right to use, but not to own, land. In keeping with this, land cannot be sold to people outside the uma or kin-group.Footnote 146 While there was some privatisation of land during Portuguese colonisation and Indonesian occupation, this was generally restricted to areas around Dili and other major towns, leaving much of the territory governed by local land tenure systems.Footnote 147 The government is presently consulting on a proposed Land Law that (as currently drafted) will institute a system of individual land tenure. After community pressure this law has been amended to engage with local sociopolitical practices, and it now includes a section on customary land tenure. It is not yet clear how individual and communal land tenure will be reconciled before the law is adopted.
In subsistence economies communal property ownership can make sense, as survival often depends on the collective due to the labour-intensive nature of agricultural work, and the fact that sharing produce frequently constitutes the most reliable form of social security.Footnote 148 Despite this, liberal thinkers condemn communal property rights as the cause of poverty and ‘under-development’, on the grounds that they: leave property outside the formal market; complicate access to land; and prevent the occupiers of informal properties from accessing capital.Footnote 149 Indeed, liberal thinkers tend to attribute ‘economic dysfunctionalism to societies … rather to any dysfunctional economic precepts, structures and conditionalities’ imposed or generated by free-market reforms.Footnote 150
In Timor-Leste the influence of liberal economic policy has seen international development agencies working to ‘break’ the communal subsistence economy, and to replace it with a market-based one in which people work in the formal economy.Footnote 151 Reflecting this approach, one high-ranking government official commented that Timor-Leste ‘has to change its culture and way of doing things, so that people can produce surplus products to sell’.Footnote 152 However, the rapid introduction of a market-based economy has led to social disharmony and economic inequality, as it has disrupted local communal and cooperative modes of production.Footnote 153 While development is necessary, it should be recognised that liberal economic reforms can ‘aggravate the vulnerability of sectors of populations to poverty’Footnote 154 and that capitalism ‘encourages conflict’.Footnote 155 In particular, the disparity between development levels in rural and urban areas has encouraged migration to Dili, which has resulted in tensions as urban areas become increasingly crowded and competition intensifies over access to economic opportunities.Footnote 156 These tensions came to a head in April and May 2006, when rivalries within and between the PNTL and F-FDTL boiled over into riots and mass violence that left at least 37 people dead and 150,000 displaced. The causes of this unrest are complex, and are often claimed to have their roots in ‘ethnic’ tension.Footnote 157 Yet this unrest would not have taken hold on such a large scale but for an environment complicated by ‘poverty and its associated deprivations, including high urban unemployment and the absence of any prospect of meaningful involvement and employment opportunities in the foreseeable future, especially for young people’.Footnote 158 The violence during and after the 2007 national elections, and the attempt to assassinate the president and prime minister in February 2008, indicate that the potential for conflict and instability remains.
While contrary to free-market economic theory, welfare policies were ‘an integral part of the liberal state and its peace’ until the end of the Cold War.Footnote 159 Wealthy capital market economies responded to the potential for conflict created by uneven development ‘by implementing welfare policies designed to redistribute income to poorer segments of society’.Footnote 160 However, no comprehensive welfare strategy was adopted during the state-building operation in Timor-Leste, and for the first five years after independence the state was unable to afford one. As its petroleum revenues grew, in 2008 the current government introduced programmes of periodic cash payments to veterans of the resistance and their survivors, the elderly and disabled, and vulnerable female-headed households.Footnote 161 These programmes have placated many involved in the 2006 violence but, given the state's limited resources, their long-term sustainability – and the peace they have bought – is doubtful. Indeed, in 2010 the UN Secretary General reflected that ‘socio-economic factors that fuelled the 2006 crisis … have improved slightly but will take many years to be fully addressed’.Footnote 162
In partial recognition of the risk of further conflict, the current government has signalled a shift away from liberal economic policies. The prime minister, Xanana Gusmão, has criticised the free-market policies of the first government, declaring that: ‘in an economy lacking sound foundations, and condemned to import most consumer and primary goods … the population in general and the peasants in Timor-Leste are not in a position to carry the weight of the laws of the free market’.Footnote 163 To that end, Prime Minister Gusmão's proposed Strategic Development Plan relies heavily on state-led development, and aims to invest petroleum revenues in projects that seek to promote sustainable development across all social groups.Footnote 164
The emergence of liberal-local hybrid peace in Timor-Leste
In response to the challenges posed by attempts to institutionalise the liberal peace, the state has increasingly sought to engage with local practices. Such engagement is provided for in the Constitution, which requires the state to ‘recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing specifically with customary law’,Footnote 165 and to ‘assert and value the personality and the cultural heritage of the East Timorese people’.Footnote 166 However, it does not elaborate on what these requirements mean. This arguably reflects the fact that much of the political leadership at independence was drawn from the diaspora, heavily influenced by international state-builders and tended to see the recognition of local practices as ‘bringing back the dark ages’.Footnote 167
Notwithstanding these views, in addition to the shift towards engagement described above, the state has increasingly sought to utilise local sociopolitical practices. For example, in response to the 2006 crisis the government held a series of reconciliation ceremonies, beginning at the village level and culminating in a national ceremony in Dili.Footnote 168 It is claimed that the national ceremony was not conducted in accordance with customary requirements (which undermined its legitimacy).Footnote 169 Consequently, it was perceived as an empty ‘cultural show’, leading to a mass brawl erupting afterwards along the Dili waterfront.Footnote 170 Despite this, the decision to hold the ceremony signals that some political leaders did recognise the continuing – and unifying – resonance of local practices.
However, at times the state's utilisation of local practices has verged on being disingenuous. For example, concerns over the exploitation of natural resources have led to a resurgence in the adoption of customary tarabandu. A tarabandu is ‘an agreement among the community regulating aspects of behaviour and relationships among people, between people and natural resources, and economic life’.Footnote 171 In recognition of their power such agreements have been utilised by the government, with the secretary of state for Natural Resources facilitating the negotiation of a tarabandu to limit sand-mining and erosion of the main Dili river.Footnote 172 It is generally agreed that this tarabandu has been successful, as it involved local leaders and was concluded according to local sociopolitical principles.Footnote 173 Conversely, the Secretary also arranged a tarabandu and ceremony to legitimise the state's right to explore Timor-Leste's natural resources.Footnote 174 Critics have claimed that this tarabandu was not conducted in accordance with local practices and did not involve legitimate local leaders.Footnote 175
Despite these missteps, there are several further ways in which mutual engagement between liberal and local practices could productively occur. Increased political, administrative, and judicial decentralisation could help to make state institutions work through ‘kin-based and other traditional networks’.Footnote 176 This approach recognises the reality that, while local institutions have their faults, they are often the ‘only mechanisms available to dispense any kind of justice or administration in the places where they exist’.Footnote 177 This is because people participate in local institutions that they can identify closely with,Footnote 178 which may in turn encourage them to develop a sense of citizenship and identification with state-level institutions.Footnote 179 Decentralisation is also touted as increasing the accountability of political leaders and the responsiveness of government to local demands, and as delivering better quality community infrastructure at a lower price.Footnote 180 Decentralisation can also help to dilute the potential for conflict if it gives some political power and control over economic resources to all parts of the population.Footnote 181 In addition, localising the use of sociopolitical practices allows for variations across different groups.Footnote 182 Each of these benefits may help to increase faith and trust in state institutions, and therefore strengthen the social contract.
However, decentralisation can raise difficulties. Local elites may not necessarily be more responsive than state-level actors, although local sociopolitical practices which emphasise consultation and consensus-building remain strong in Timor-Leste. Central government resistance can also lead to unequal or ineffective decentralisation, and decentralised governments can be costly and face capacity limitations.Footnote 183 Complicating this, if substantial power and resources are decentralised to the local level this may legitimise that level of government at the expense of the state. For example, even though few resources have been decentralised, a 2008 survey found that there was confusion over who is ‘primarily responsible for making the rules that govern people's lives’, with 48 per cent of respondents identifying community leaders and only 33 per cent identifying state institutions.Footnote 184
However, since the state has formalised local authorities there seems to be a strong argument for decentralising greater power and resources, so that they are able to perform their role. Keeping in mind the difficulties posed by decentralisation and the variable performance of these institutions to date, this should be accompanied by state regulation, including through providing clearer job descriptions for suco leaders and council members and by clearly delineating the activities for which they are responsible, in order to ensure consistency across sucos. It should also be accompanied by greater state government oversight to: hold suco leaders and councils accountable for their performance; check that leaders are representing and consulting their people; and confirm that leaders are following the law.Footnote 185
The social contract between the people and the state could also be strengthened if government transparency is improved, and if citizens are given more opportunities to participate in state affairs. Indeed, many Timorese want to have a relationship with, and participate in, state institutions.Footnote 186 This is demonstrated by the fact that more than 90 per cent of eligible voters voluntarily turn out at elections.Footnote 187 One partial solution would be to reintroduce the system of district representatives that was in place for the election of the Constituent Assembly, which saw one representative elected by each of the 13 districts. It was intended that these representatives would consult with, and advocate on behalf of, their district.Footnote 188 Although the district representatives were criticised for failing to consult in the manner intended,Footnote 189 this does not mean that, with training and resourcing, they would not better fulfil this role in the future. In particular, these representatives could be tied to the proposed municipal government system, with consultation facilitated by those bodies. Improved civic education programmes could also help to build awareness of state institutions and empower people to participate in state decision-making. Despite ongoing calls from Timorese civil society, to date a lack of funding and capacity has undermined efforts to provide such education.Footnote 190
The inclusion of local practices and actors in state institutions might also encourage Timorese to relate to the state and enhance the legitimacy of state institutions. For example, when the Constitution was being made there was an attempt to create a Council of Liurais, which could have provided advice to state officials and institutions regarding local sociopolitical practices.Footnote 191 Indeed, several other constitutions across the Pacific give a degree of recognition to local sociopolitical authorities, either as an advisory body or as having the power to appoint offices or veto parliamentary bills.Footnote 192 It has similarly occurred in parts of Africa, where ‘retraditionalisation’ has seen traditional elders officially incorporated into state hierarchies.Footnote 193 The idea of establishing a Council of Liurais was mooted in the Constituent Assembly, but was rejected because of concerns that it could enshrine patriarchal leadership structures.Footnote 194 There was also the concern that formally recognising the power of liurais might entrench unequal social structures and ‘keep people in slavery’.Footnote 195 In this regard, traditional society was highly stratified and even today Timorese are ‘acutely aware … who was a commoner and who was a slave’.Footnote 196 Indeed, rumours that liurais in Dili (including some with positions in the government and public service) continue to keep people of lower social status as slaves are widespread.Footnote 197 However, if such a Council included ‘elders’ rather than ‘liurais’ it might be better able to reflect changing social structures.
To deal with the challenge posed by legal pluralism, state law could formally recognise customary law in order to provide some certainty concerning the content and hierarchy of laws. Such recognition might also ‘give the local population some feeling of ownership over, and connection with, the applicable law and its values’.Footnote 198 To this end, the Ministry of Justice, in cooperation with the UNDP and the current UN mission,Footnote 199 began working on a draft Customary Law in 2008. They conducted nine months of consultation with justice actors, women's groups, religious organisations, local authorities, and civil society. The feedback from these consultations was then organised, and a process of mapping the different customary practices was conducted. While the draft Customary Law was finished in August/September 2009, the broader legal framework has since changed. Therefore, it is now being updated, and another consultation and socialisation procedure will be undertaken before it is introduced in parliament.Footnote 200
There are a number of difficulties when seeking to identify elements of customary law that are sufficiently common and certain to be codified, since it is generally oral,Footnote 201 constantly evolving, and highly localised between groups.Footnote 202 Despite this, consultations on the draft Customary Law found that, while local practices were diverse in terms of language and dialects, most handled things in the same way. For example, the practice of providing barlake (bride price) is more or less the same across the country. The way disputes or civil cases are handled is also very similar.Footnote 203 Indeed, while anthropologists tend to stress the diversity between the different Timorese ethno-linguistic groups, others argue that ‘if we analyse East Timorese culture more deeply there are more commonalities than differences’.Footnote 204 Therefore, while codifying customary law is difficult, it at least provides a degree of the consistency and uniformity required to help entrench the rule of law. Moreover, there are positive examples from elsewhere of local justice mechanisms and customary law operating in tandem with state justice institutions.Footnote 205
Another difficulty of formally recognising local justice mechanisms and customary law is whether they comply with liberal human rights standards. In particular, there are concerns over the neutrality of local justice decision-makers, the consistency of their decision-making, and their treatment of women, particularly in cases of sexual assault and domestic violence.Footnote 206 For example, a 2008 survey revealed that 58 per cent of respondents disapprove of women being able to speak for themselves in local justice mechanisms.Footnote 207 However, the Constitution specifies that ‘local norms and custom’ must only be taken into account to the extent that they are not ‘contrary to the Constitution’. Consequently, they are subject to the human rights protections enshrined in the Constitution, although these mechanisms are admittedly weak.
There is also potential for formal justice institutions to supervise local justice mechanisms, such as through reviewing whether the penalties imposed in local mechanisms are proportionate and comply with the human rights protections enshrined in the Constitution. There are proposals to mandate the Ombudsman to monitor local justice institutions to ensure that human rights are being respected.Footnote 208 In addition, educational programmes could be adopted to assist communities to adapt to reflect the human rights protections contained in the Constitution.Footnote 209 In this regard, the consultation process on the draft Customary Law indicated that, once it was explained how local practices conflict with liberal human rights standards, communities were prepared to alter their local practices accordingly.Footnote 210
Another difficulty is the danger of ‘forum-shopping’,Footnote 211 which may undermine the uniformity of justice institutions, and consequently the rule of law. Increasing internal migration towards urban areas also raises questions concerning which customary law should be applied to persons living outside their traditional local area.Footnote 212 However, the draft Customary Law provides for appeals from local mechanisms to state justice institutions, which gives people the opportunity to access uniform state law if they are dissatisfied with the decision of the local justice institution.Footnote 213
The challenges posed by the rapid introduction of a free-market economy could be met by recognising the ‘coexistence of the public sector, the private sector and the co-operative and social sector of ownership of means of production’,Footnote 214 to achieve the combination of ‘community forms’ and ‘free initiative’Footnote 215 envisaged by the Constitution. Indeed, one member of parliament involved in drafting the Constitution has described it as ‘politically liberal, but economically socialist’, because so many members of the Constituent Assembly had been members of the Portuguese socialist party while they were living in the diaspora.Footnote 216
The adoption of liberal free-market policies in Timor-Leste should not be overstated. While the independence government was persuaded by the World BankFootnote 217 and Asian Development BankFootnote 218 to adopt such policies, as the current government has begun to receive increased petroleum revenues and move away from relying on donor funding, it has increasingly resisted such external pressures and has moved towards a more state-led approach to development. Indeed, free-market theory would criticise the cash payment programmes introduced by the current government on the grounds that they distort the market. Despite this, the state has opted to spend much of its petroleum revenues on these programmes, rather than investing them in activities that would more explicitly encourage private sector growth. While it is not yet clear whether the proposed Strategic Development Plan will seek to balance free-market and local communal practices, it is worth noting that such a balance is not unheard of elsewhere in the Pacific, where cooperatives and land trusts provide mechanisms for local communal practices to interact with the market.
Conclusion: a liberal-local hybrid peace project in action?
The institutionalisation of the liberal peace has faced significant challenges in Timor-Leste. Initially it resulted in the creation of shallowly rooted and poorly understood liberal state institutions that were disconnected from the majority of Timorese, who continued to follow their local sociopolitical practices. In response, the state has increasingly sought to engage with these local practices, and therefore a liberal-local hybrid peace project has emerged.
Timor-Leste was in many ways a paradigmatic example of liberal peace state-building, where the project arguably stood a good chance of success. Therefore, it is important to draw generalisable insights from the challenges that project faced and the resulting emergence of a liberal-local hybrid peace project, which can offer lessons for both the literature and for ongoing and future state-building operations. The first lesson is that the legitimacy of political leaders and institutions is based on socially constructed perceptions, rather than on liberal assumptions regarding the legitimating role of democratic elections. As a result, there appears to be good reason to formalise local sociopolitical institutions so that they can provide a link between the local level and the state. There is also good reason to decentralise greater power and resources to them so that they can better perform this role. Second, in primarily rural, subsistence-based societies from which the state remains largely absent, it can be difficult to build the statewide social contract on which the promotion of democracy depends. Improving methods of representation and opportunities for consultation and participation at the state level, combined with utilisation of local ceremonies and practices that can translate state activities into a language which people understand, may help to build such a contract. Third, the tension between liberal individualism and ideas of communal responsibility evident in subsistence-based societies suggests that there is good reason to incorporate local practices into the justice system. This would also recognise the reality of legal pluralism in societies where local justice systems remain comparatively accessible and legitimate. It would also help work towards establishing the certainty required by the rule of law. Finally, the difficulty of promoting a liberal free-market economy in an essentially subsistence, communal society should be recognised, to avoid undermining existing economic practices and causing unnecessary hardship.
The challenges that prompted the emergence of a liberal-local hybrid peace project in Timor-Leste are likely to remain in the medium-term. Therefore, this project appears to offer more promise than institutionalising the liberal peace. While the state has begun to implement this project, this article has identified further ways in which there is scope for it to expand. Despite this, there are risks. There is a danger that, unless there is genuine partnership, the state might be perceived to be using local sociopolitical practices and institutions instrumentally or disingenuously in order to extend its dominance over society, which would echo the Portuguese colonialists’ practice of indirect rule.Footnote 219 Yet local actors are not just passive subjects and can instrumentalise custom to take back control from the state.Footnote 220 Moreover, while the formal recognition of local sociopolitical institutions has arguably helped to legitimise the state institutions to which they are attached, they have also provided Timorese with better avenues to access and influence those state institutions.Footnote 221 However, while local practices involving consultation and consensus evolved to manage small-scale, village-based decision-making, their effectiveness may diminish if they are expanded beyond the local level.Footnote 222 In particular, local institutions might find themselves unable to manage disputes between their community and others, or their community and the state.Footnote 223 However, examples of the way in which hybrid models that combine local and state practices have effectively managed natural resources based on tarabandu, provides an example of the way in which such disputes can be resolved.Footnote 224
The engagement envisaged by a liberal-local hybrid peace project may also raise difficult questions for liberal thinkers, as some local practices might be seen as illiberal and undemocratic. There is a risk that local practices might be captured by elites and manipulated, corrupted or abused.Footnote 225 This suggests that ordinary people may suffer most from romanticising local practices and institutions, since ‘it is the privileged who can afford to tell the poor to preserve their traditions’.Footnote 226 Indeed, the recognition of local sociopolitical practices and institutions can lead to malevolent forms of hybridity, as has occurred with respect to the cooption of ‘warlords’ in Afghanistan and Iraq. This saw deeply ambivalent actors provided with political legitimacy and funding, often resulting in corruption, dysfunctional political economies, human rights abuses, or further conflict.Footnote 227 To date, similar circumstances have not arisen in Timor-Leste, as local sociopolitical practices are participatory and consultative, and local leaders are held accountable both by social sanctions and democratic elections. In addition, few resources have been decentralised to local leaders, and therefore incentives for manipulation and opportunities for corruption at that level are minimal. The evidence relating to the resilience of local sociopolitical practices suggests that, if additional resources and functions are decentralised, Timor-Leste stands a good chance of avoiding the serious problems experienced in places like Afghanistan and Iraq. However, this possibility cannot be entirely excluded.
There is also a risk that local practices can discriminate against women and young people, since elder males generally have authority in local contexts.Footnote 228 However, engagement between the liberal and local does not necessarily involve cultural relativism or idealising discriminatory local practices. Instead, such engagement ‘is an acknowledgement of the necessity of the input … of the local – whatever its nature – as well as the international’.Footnote 229 The evidence from Timor-Leste concerning the nature of this input is encouraging. There are indications that local practices are ‘evolving’, rather than ‘fixed’,Footnote 230 as they can adapt to new realities and demands for the greater accommodation of liberal norms and human rights.Footnote 231 In this regard, the suco councils reserve seats for women and young people in order to ensure their participation. The government has also changed the local government law to refer to the more gender-neutral term suco ‘leaders’, rather ‘chiefs’ and women are emerging as local leaders, with the number of female suco leaders rising from seven in 2004 to eleven after the 2009 election. Although this is only a fraction of the 442 suco leaders elected, it does suggest Timorese society is gradually shifting away from patriarchy. In addition, the consultation process associated with the recently-adopted Domestic Violence Law Footnote 232 was praised by women's groups because it provided the opportunity to socialise liberal human rights standards into local practices. Even before the law was formally adopted, a socialisation programme had led to a noticeable increase in reporting of domestic violence to the PNTL.Footnote 233 This signalled that domestic violence was being recognised as a public, rather than local, concern. There are similar examples of communities altering their local practices when they became aware that they clashed with human rights standards.Footnote 234 The consultation process on the draft Customary Law also indicated that, once it is explained how local practices conflict with liberal human rights standards, communities are prepared to alter their local practices accordingly.Footnote 235
The Timor-Leste case illustrates that engagement with local communities and practices can lead to the promotion of liberal norms and human rights. This can occur through state-builders holding conversations with people about what liberal ideas mean, and how they fit with local customary laws.Footnote 236 It also illustrates that the liberal and local are not inextricably opposed, and that a process of engagement can bridge the gap between them. This reflects the fact that engagement not only requires the liberal to accommodate local practices, but also that local practices evolve to accommodate liberal democratic norms. Indeed, there is a tendency in anthropological literature to overdraw the gap between the liberal and the local, and to overlook the agency of local populations to both appropriate the liberal and to adapt the local.
With South Sudan recently voting for independence and secessionist conflicts raging around the world, state-building operations are likely to continue. This suggests that there are good reasons to challenge the liberal peace state-building project and to test alternatives, such as the liberal-local hybrid peace. Future state-building operations may not always encounter local sociopolitical practices as resilient as those in Timor-Leste, and therefore may not require the same level of engagement with them. However, at a minimum the liberal-local hybrid peace project highlights the importance of state-builders engaging in conversations with local populations, in order to determine how they understand their society and what they want their state to look like. It also suggests that the importance of cultural agency for legitimising state-building needs to be acknowledged, in order to create state institutions that actually make sense to the people they seek to govern.
