NEW ELECTORAL LAWS GO INTO EFFECT, BUT MANY ISSUES

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SUBJECT: NEW ELECTORAL LAWS GO INTO EFFECT, BUT MANY ISSUES
OUTSTANDING


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1. Summary: The three main laws that will govern East Timor's
presidential and parliamentary elections this year were finally
promulgated last month. While the final versions do contain a
few compromises of note, the overall process resulted in laws
that fall significantly short of reflecting a national political
consensus. Rather, the ruling Fretilin party used its
overwhelming numbers in Parliament to push through its drafts of
the laws, while the opposition despite having produced its own
alternate versions did not ultimately rise to the challenge of
serious debate. The laws leave basic electoral structure used
in the 2005 local elections in place, with the body
administering the elections reporting to a Government ministry
and a separate independent, somewhat strengthened supervisory
commission, but important weaknesses remain. According to
electoral experts, the laws contain a number of technical flaws
or omissions that could have serious consequences if not
addressed. The independent UN Electoral Certification Team has
likewise identified a number of problems with the laws that must
be addressed to assure certification, but so far there is no
sign that steps are being taken to address these issues. End
summary.


2. The main laws which are to govern East Timor's upcoming
presidential and parliamentary elections were passed in
Parliament late last month and the President signed them into
effect shortly thereafter. They include the law governing the
electoral administration and supervisory bodies (the Technical
Secretariat for Electoral Administration (STAE) and the National

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Electoral Commission (CNE)),the parliamentary election law, and
the presidential election law. All three laws were based on the
Government's drafts, which in effect were the ruling Fretilin
party's versions. (Note: the Government originally submitted
only two draft laws, but the third law on the CNE was formed
from articles originally contained in the Government's
parliamentary election law draft.) Several opposition parties
had submitted an alternate draft of the parliamentary election
law as well as a separate law on the electoral bodies that would
have had the STAE to no longer reporting to the Ministry for
State Administration, but to CNE instead. The laws ultimately
passed did reflect some compromise with opposition positions,
for example reducing the threshold for representation in
parliament from five to three percent. Overall, however, the
laws as promulgated remain essentially the same as those
proposed by the Government.

Consultation process fell short
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3. Although numerous national and international NGOs were
involved in organizing consultation on the laws, in the end
these consultations had very little influence on the final shape
of the laws. The original drafting of the Government versions
that ultimately passed was conducted with virtually no
consultation. The bilateral (Portuguese) and UN-supported legal
drafting advisors consulted only with Government officials
before drafting the laws. The parliamentary committee
responsible for reviewing the law and making recommendations to
the plenary (Committee A: **) did a cursory job at best of
incorporating the consultation results and analyzing the drafts
themselves. This can in large part be explained by lack of
necessary expertise on the committee, but committee members
appear to have made little effort to draw on the expert
resources available to them. Ultimately they addressed none of
the more complicated aspects of the laws, such as the electoral
formula, focusing only on a few issues.


4. The plenary discussions also left much to be desired. The
most influential opposition parties opted out of plenary debate
early in the process, boycotting all discussion and voting.
They did this reportedly in response to Fretilin reneging on a
gentlemen's agreement by which aspects of the opposition draft
laws, especially the opposition proposals regarding the National
Election Commission (CNE),were to be incorporated. However,
many observers saw this as politically immature and ultimately
an abdication of their responsibilities in the debate. In the
end, Fretilin used its overwhelming numbers in Parliament to

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simply push through its own laws with no effort to bridge
differences with the opposition or to develop consensus. As a
result, a number of opposition parties continue to publicly
disavow the laws as passed. While this is unlikely to have
immediate implications, they will be able to point to this after
the elections if they choose to question their legitimacy.

Some compromises, but many flaws remain
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5. Despite the above noted process, there were a few notable
compromises that are incorporated into the final laws. These
include:
-- The electoral threshold for representation in Parliament was
reduced from the five percent originally proposed by Fretilin to
three percent. (Opposition proposal: no threshold.)
-- The quota for women on party lists was increased from one in
the initial five to one in every group of four. (Opposition
proposal: one in every group of five.)
-- The CNE was given a five / six year** mandate, allowing it to
remain in place through the next national elections, replacing
the Fretilin proposal of establishing a new, temporary CNE for
each election. (Opposition proposal: establishment of a
permanent CNE.)
-- Ballot counting can take place initially at the polling
stations rather than being moved to district counting stations
first. However, the time limits placed on this are problematic.
(Opposition proposal: complete counting at polling stations and
recounting at district polling stations.)


6. According to IFES, the narrow consultation that informed the
drafting of the laws left numerous problems and omissions in
place that may have been addressed had the process allowed for
wider scrutiny and feedback. Examples in the parliamentary
election law include:
-- The provisions governing political propaganda define it only
as text-based. No voice transmissions, such as broadcast media,
are mentioned. This is of particular concern in the Timorese
context where low literacy means that the vast majority will
receive their election information orally.
-- Party candidate lists are required to include a minimum of 70
names, arguably burdensome and unnecessary for smaller parties
with a realistic expectation of only a handful of seats.
-- The law refers to the Political Party law for provisions
governing party and coalition registration. However the
Political Party law is particularly ambiguous on coalitions.
Given the possibility that opposition parties will form a
coalition, this is an important issue to flesh out in detail.
-- While the electoral threshold was reduced, it is defined as a
proportion of the total number of votes, not the total number of
valid votes, causing the real threshold to be de facto higher
than specified.
-- Electoral violations are defined as pertaining to STAE
personnel only, not all public servants who may carry out
electoral functions.
-- Some technical arrangements are specified in too much detail,
and may have been better left to electoral bodies to determine
taking local circumstances and other variables into account.
For example, the law specifies poll station opening and closing
times, ballot paper color, and the number and type of polling
staff.
-- Candidate lists can be submitted as soon as the election
dates are declared. This essentially links the date
announcement to the preparation necessary to receive candidate
lists. If the dates are announced before the electoral bodies
are logistically prepared to receive the lists, this will
violate the law as written.

Certification Team: laws fall short of benchmarks
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7. In its second report, which incorporated a review of the
STAE/CNE law and the parliamentary election law, the independent
UN Electoral Certification Team identified a number of ways in
which the laws as currently written fail to meet its benchmarks
for certification. In particular it notes that the law does not
explicitly give CNE sufficient power to access "the original of

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any document held by STAE, or by any other governmental body
(other than a Court) which has functions to perform in
connection with the management of the elections". Some
additional concerns highlighted in the report are that the law
permits voting at any polling station without provisions to
prevent multiple voting; the requirement that counting at the
polling stations be closed and transferred to district counting
centers if not completed within an hour, which fails to meet the
Team's transparency benchmarks; and ambiguity regarding
identification needed to prove eligibility to vote.
Interestingly, the Team's report was conveyed to the President
before either the STAE/CNE or the parliamentary election laws
were presented to him for promulgation, but he signed them
quickly with apparently no reference to the concerns therein.
It remains unclear at present what legal remedies are required
to meet the certification benchmarks. Subsidiary regulations
may be able to address at least some of the concerns, but there
is likely also a need for the laws themselves to be amended.
To date there has been no indication that efforts are underway
by Parliament or the Government to address the Team's concerns.


8. The complete Electoral Certification Team reports are
available at www.unmit.org. The official English translations
of the laws will also be posted at this site in the near future.
GRAY