NEW ELECTORAL LAWS GO INTO EFFECT, BUT MANY ISSUES

UNCLAS SECTION 01 OF 03 DILI 000011 SIPDIS DEPT FOR EAP/MTS PACOM FOR POLAD AND JOC NSC FOR HOLLY MORROW SIPDIS E.O. 12958: N/A TAGS: PGOV KDEM UN TT SUBJECT: NEW ELECTORAL LAWS GO INTO EFFECT, BUT MANY ISSUES OUTSTANDING DILI 00000011 001.2 OF 003 ¶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 SIPDIS 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 -------------- ¶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 DILI 00000011 002.2 OF 003 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 -------------- ¶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 -------------- -------------- ¶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 DILI 00000011 003.2 OF 003 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