AUSTRALIA TIMOR-LESTE ELECTION OBSERVER MISSION (ATLEOM)
2017 TIMOR-LESTE PRESIDENTIAL ELECTIONS, 20 MARCH 2017
23 March 2017
Damien Kingsbury and Michael Maley
The Australia Timor-Leste Election Observer Mission, auspiced by the Victorian Local Governance Association and supported by the Australia Timor-Leste Friendship Network, is pleased to announce that the conduct of Timor-Leste’s presidential election on 20 March 2017 has substantively met the criteria for being free and fair. The outcome of the election was a legitimate expression of the political will of the country’s citizens which further consolidated the democratic process in Timor-Leste.
There was widespread coverage of the election process by accredited domestic election observers. However, only two external international election observer organisations were present for the presidential elections; the European Union and ATLEOM. Some locally based Australian embassy staff were also accredited as election observers.
ATLEOM’s 26 accredited volunteer election observers were presents in eight of Timor-Leste’s 13 districts: Oecusse, Bobonaro, Liquica, Dili, Aileu, Ainaro, Baucau and Viqueuque. Each team visited a number of polling stations, including being present for set-up, opening, throughout the voting process, at closing and for the vote count.
Voter turnout was in the order of 70 per cent, which was in line with expectations and similar to 2012 turnout figures. This continues to represent a relatively high voluntary voter turnout rate and, as in the past, may in fact be higher than the official figure would indicate due to a number of redundant names not having been removed from older voter registration rolls.
The 2017 presidential election was the fourth such election held in Timor-Leste, comfortably surpassing the ‘double turn-over’ test that is claimed to mark democratic consolidation. Equally as important, it is the first such election conducted in Timor-Leste that has not been assisted in large measure by the international community.
The elections were run by Timor-Leste’s Technical Secretariat for Electoral Administration (STAE), under the supervision of Timor-Leste’s National Election Commission (CNE). The International Foundation for Electoral Systems (IFES) had one consultant working with STAE and one consultant working with CNE, as well as two office staff and a team supervisor.
The election process was widely reported by ATLEOM observers to have started on time at 7am, with election preparation beginning at 6am. STAE staff were observed to follow formal procedures around the setting up of polling stations, the emptying and formal sealing of ballot boxes, and the organization of the process of marking voters names off lists, the stamping and handing out of ballot papers, the privacy of voting booths and the transparency of the local vote count.
CNE staff were clearly identifiable due to their shirts. However, polling station staff belong to STAE were only identifiable due to their white caps with ‘STAE’ written on them. STAE staff shirts were ordered late as a consequence of poor legislative planning and hence late legislative changes and subsequent short equipment ordering lead times and were not available on the day of the ballot. Other ballot materials, including stamps for marking ballot papers and computers for tabulating results were only provided at the very last moment, also as a consequence of the late legislative changes and subsequent late ordering of equipment.
As in the past, most voters came early, with most election activity being concluded before midday. Polling stations closed on time at 3pm, with the local election count proceeding into the evening, in some cases the early hours of the morning. A preliminary election result was made public on the afternoon of 21 March 2017, around 24 hours after voting had concluded.
The lead-up to the election was marked by a number of colorful and noisy rallies. There was a small number of reports of minor incidences of election-related violence, although none resulted in deaths and all political leaders were vocal in calling for calm among their supporters. Set against a longer history of political violence within a post-conflict setting, this significant and continuing reduction in politically related violence was a further positive step towards longer term political stability.
There were a number of relatively minor technical issues with the election process, principally in the pre-organisation of the election and, to a lesser extent, in the conduct of the election.
The major issue was the very late passage of election-related legislation, which resulted in the late provision of finances to undertake the election. That the presidential election ran as well as it did was a testament to the organization and professionalism of STAE staff, set against exceptionally tight timelines and lack of approved budgets.
There is also significant concern within ATLEOM over what appears to be the compromised independence of the CNE, with the removal of civil society representatives as non-government approved voices on the body that is intended to oversee the electoral process.
This issue of the integrity of the supervisory electoral body did not appear to materially compromise the presidential elections, but has the potential to do so in future electoral processes and remains a matter of concern.
AUSTRALIA TIMOR-LESTE ELECTION OBSERVER MISSION (ATLEOM)
OFFICIAL REPORT 2017 TIMOR-LESTE PRESIDENTIAL ELECTIONS, 20 MARCH 2017
Timor-Leste’s 2017 Presidential election was conducted on 20 March, as scheduled, despite the late passage of enabling legislation and the subsequent problems caused by that delay. There were eight candidates for the presidency, one of which was a woman. Most candidates were supported by one or more political parties.
The elections were overwhelmingly successful, well managed and marked only by relatively minor discrepancies in the electoral process.
Around 70 per cent of the country’s registered voters participated in the presidential elections. As in the past, there remain questions about the accuracy of voter registration lists, which may overstate the number of registered voters and hence under-estimate the voter participation rate.
743,150 voters were based in 13 municipalities (formerly districts), with access to 944 polling stations in 696 polling centres (some polling centres had more than one polling station).
For the first time since independence, Timor-Leste engaged in ‘out of country voting’ (OCV), which was intended to include in the electoral process all of Timor-Leste’s citizens including those living overseas. The initial announcement for OCV stated that it would include all overseas citizens. However, as the procedural realities of OCV became apparent, the process was reduced to the registration and voting in just three overseas voting centres; Lisbon, Darwin and Sydney. In the end, just 1,393 overseas Timor-Leste citizens were registered to vote, of an estimated 25,000 or more, notably in the United Kingdom, Melbourne (Australia) and working elsewhere internationally.
Due to logistical challenges, there was no pre-polling and, without a postal service, no postal vote was available, both of which are uncommon in all but developed countries, nd even then often limited.
Election-related issues noted by ATLEOM observers included:
– A lack of identifying t-shirts for STAE polling station staff, which was a consequence of the late passage of the election legislation and consequently the organization of the election process.
– The late provision of computers for tabulating election results in the districts, and the poor internet service provided to relay local election counts.
– Some inconsistency in the organization of polling stations, mostly based on the lay-out of election station sites but which in some cases had the effect of removing the polling booths from the main election station area.
– Mobile phones were in a number of cases used to photograph marked ballot papers, despite mobile phones being banned from use in polling stations.
– Open disputation of the election count process by some accredited party representatives (they are supposed to observe but not interfere).
– The fraternization between polling station staff and party representatives in some observed cases.
– The wearing of t-shirts closely related to the insignia of one political party by party observers in most election stations (no party advertising material is allowed inside polling stations).
– Limited access to polling stations by people with disabilities. Assistance was provided to many people with disabilities and the disabled and elderly were given priority in the voting process at polling stations observed. However, in most cases observed, polling stations were not accessible by wheel-chair (in many locations the whole local environment was not conducive to wheelchairs). The blind were, however, assisted to vote.
– The lack of official support for the elderly and disabled to be able to travel often quite long distances and often over difficult terrain to polling stations.
– The public, in some cases verging on aggressive, contestation of improperly marked ballot papers by members of the public watching the election count process.
– Checking of fingers for ink (indicating having voted) was noticeable by its absence.
– The inking of fingers was often undertaken with reluctance and in some cases therefore not well done.
– Observers were in some cases (Aileu) stopped from testing the ink used to mark fingers.
– Observers were prohibited in some cases (Aileu and Ainaro) from taking photographs of the polling process, despite being formally allowed to do so.
Each of these issues should be addressed prior to the forthcoming parliamentary elections.
Despite these largely technical shortcomings, the presidential elections were generally well conducted and were widely reported by ATLEOM observers to have worked smoothly and overwhelmingly successfully.
1. ELECTION-RELATED VIOLENCE
There was a small number of reports of relatively minor incidences of election-related violence in the lead-up to the presidential election. Four were confirmed as election-relation violence, although the wider pre-election period was marked by a significant spike in generally reported violence, not formally identified as associated with the election process. One incident in Dili’s outer west in particular required police to attend and to file a report with the CNE and President Taur Matan Ruak.
All political leaders called for calm from their supporters and ‘militants’, as did the CNE. None of the pre-election violence resulted in deaths and the violence was, with the exception of the destruction or partial destruction of some houses in one incident, not serious. Set against a longer history of political violence within a post-conflict setting and against pre-election violence in Timor-Leste in particular, this significant and continuing reduction in politically related violence was a positive step towards longer term political stability and a sign of growing political maturity.
2. POLITICAL PARTY AGENTS
There was some fraternisation between political party agents (‘fiscais’) and Polling station staff. This was observed in five of eight polling stations. On one occasion, the Brigada (polling station manager) told the agents firmly to go back go their seats.
Political party agents are not supposed to have party identifying signs. However, the Fretilin election agent shirts were red and yellow which are both their party colors (as well as being the colors of Timor-Leste). There were very few other party agents in any polling stations observed and those were that seen did not have any party identification other than their accreditation cards.
In at least one observed case, a party agent was seen to be speaking with a voter or voters in the queue to vote just prior to voting.
In one instance, a party agent was seen to go behind a polling booth and speak to a voter, but was told by polluting station staff to remove himself, which he did.
Recommendation: All party agents should wear overtly non-political white or black shirts identifying them as ‘fiscais’. Instructions should be given to party agents prior to the commencement of voting that they are not to interfere in or comment on the polling process, but are there to observe only.
There was no overt coaching or pressure from political parties or their agents towards voters. Party agents did assist some elderly voters in going through the electoral process.
Recommendation: Assistance for the elderly and disabled should be provided by STAE staff or relatives, rather than party agents.
3. BALLOT PAPER DISPLAYS
All but one of the polling stations visited had posters showing the candidates and a display of the ballot paper outside.
Recommendation: Consistency of voter information, including official posters showing candidates, should be standardized across all polling stations.
4. POLLING STATION LAYOUT
In some polling stations, voting booths were in a different room from most polling station staff.
In a number of cases, voters were seen to take small cameras or camera phones into voting booths and photograph ballot papers. Numerous ballot paper photos were subsequently posted online.
Recommendation: Polling station lay-out should be standardized where possible to avoid removing voting booths from the immediate polling station area, in particular to preclude the photographing of marked ballot papers.
Timor-Leste National Police (PNTL) and, in some cases, Border Patrol Police (UPF) were present at all polling stations visited. There were two police present at most polling stations, although in some instances where a polling centre had more than one polling station there were more police present. Police remained outside the 25 metre exclusion area except when they took it in turn to vote. Police observed disarmed themselves for the purposes of voting, so as not to take weapons in to the polling stations.
6. There was a small number of names missing from electoral rolls. These were all observed to have been resolved without rancor or dispute.
7. MEDIA. No media present at any observed polling stations with the exception of a representative of Suara Timor Lorosae at Bahu, Baucau.
8. DOMESTIC OBSERVERS.
Domestic observers were present in all but one of the polling stations visited by ATLEOM observers. Domestic observers were principally from OIPAS but also from Renetil, UNTIL, Fongtil, C Link and Centro Desk.
9. INTERNATIONAL OBSERVERS.
European Union observers crossed paths with ATLEOM observers in at least two instances, as well as EU and Australian embassy observers also being present at two other polling stations at a different time of day.
Recommendation: STAE should arrange a joint meeting of international observer delegation leaders and international observer delegation leaders and domestic observer delegation leaders to coordinate election observation to produce the widest coverage of observation. This will be less of an issue in the parliamentary elections, when there is expected to be a much larger number of international and possibly domestic observers. However, given the very large number of often quite remote polling stations, it would be useful to try to ensure as wide a coverage of the election process as possible.
The rights and responsibilities of both domestic and international observers should be made clear, possibly in the form of a poster, at each polling station, to avoid confusion ad difficulty over what is and is not allowed on their part.
10. VOTER WAIT TIMES
At polling stations attended by ATLEOM observers, apart from early polling which tended to be very quick, polling wait times in queues were typically in the 30 to 45 minute range, with the voting process itself typically taking around four minutes. In some area, voters were organized into straight queues, as required by polling station planning. However, in some cases the queues were curved into the side of the polling station or otherwise assisted to be shaded from the mid-morning sun.
In areas where it rained early, voters were slower in coming out to vote, although came out in good numbers once the weather cleared.
11. DISABLED VOTERS.
Most polling stations either had limited or no access for voters with disabilities, in particular for those confined to wheelchairs. Some polling stations were more accessible than others, either being at ground level or with ramps. However, the general environment around polling stations, especially in more remote areas, was not conducive to disabled access. Most polling stations had a series of often quite steep steps. One polling station in particular was accessible over a plank and a ditch/drain, which was inaccessible to some voters.
One disabled voter observed in a fitted bicycle was required to crawl from his vehicle into and around the polling station.
In at least one instance, in Aileu Vila, a more serviceable public building was available close by which had wheelchair access, but which was not used as a polling station.
The elderly, disabled and mothers with young babies were generally taken to the front of the voting queue to reduce their wait, and were usually assisted where required by other voters/family or by polling station staff.
The visually impaired/blind were assisted by others, usually family members or friends, to vote.
Recommendation: Proper disability access should be prioritized in future elections. People with disabilities should be assisted to vote, as a matter of policy, by STAE staff.
12. CLOSURE PROCESS.
Polling station officials announced the numbers of ballot papers delivered to the station followed by those ballot papers used and unused. Polling stations were reported to be closed on time, at 3 pm, after which the vote counting process commenced.
The local vote count proceeded efficiently and smoothly in most locations observed. There was some verbal (although not physical) interference by party representatives and in some cases by general (local, non-accredited and physically outside) observers to the process. In at least two cases, counting and reconciliation of ballot papers with numbers of votes appeared in error, forcing a recount of ballot papers a number of times. In at least one other case, an error in counting was recognized and the count was restarted, concluding after midnight.
Some errors of counting or recording the count were detected, but these were few and were viewed as having, at worst, a very slight impact on the outcome of the local counting process.
There were problems in some instances with discrepancies between the ballot paper tally and the vote count, which in at least two instances observed required numerous recounts and in one observed case concluded with local staff packing all ballot papers and sending them to the municipal ballot centre for re-counting.
Recommendation: Training of many polling station staff was undertaken at very late notice as a consequence of poor forward planning and budgeting by the Timor-Leste government. There was, in some cases, an apparent lack of planning about how to deal with vote counting issues.
Legal and institutional framework for the election
The ATLEOM team wishes to highlight its concern regarding two problematical aspects of the way in which the legal framework for presidential elections has been changed since 2012.
1. Independence of the National Commission on Elections (CNE)
Article 65, sub-article 6 of the Constitution of Timor-Leste states the fundamental requirement that:
‘Supervision of voters’ registration and electoral acts shall be incumbent upon an independent organ, the competences, composition, organization and functioning of which shall be established by law’. (‘A supervisão do recenseamento e dos actos eleitorais cabe a um órgão independente, cujas competências, composição, organização e funcionamento são fixados por lei.’).
The body in question, the National Commission on Elections, was created by Law no. 5/2006 of 28 December 2006 (“Organs of Electoral Administration”), which provided for the CNE to consist of 15 members:
• three members appointed by the President of the Republic;
• three members elected by the National Parliament;
• three members appointed by the Government;
• one judicial magistrate elected by his or her peers;
• one public prosecution magistrate elected by his or her peers;
• one public defender elected by his or her peers;
• one nominated by the Catholic Church;
• one nominated by the remaining religious faiths; and
• one representative of women organizations.
This structure had several virtues. By providing for diverse societal representation in the CNE membership, it helped to reinforce public confidence in the neutral administration of elections. Furthermore, the CNE’s size and diversity strengthened its independence both real and perceived, by ensuring that no individual or group could dominate the body by sheer weight of numbers. Detailed appointment requirements in the Law also ensured that at least four CNE Commissioners would be women. The CNE so constituted functioned effectively as an electoral supervisory body at the elections held in 2007 and 2012.
In 2016, however, the Parliament enacted legislation which significantly changed the structure of the CNE, with the consequence that all of the incumbent Commissioners were required to vacate their positions. The Law in question, no. 7/2016 of 8 June 2016 (“Second Alteration of Law no. 5/2006 of 28 December – Organs of Electoral Administration”) provided for the future membership of the CNE to be as follows:
• one member appointed by the President of the Republic;
• three members elected by the National Parliament, of whom at least one must be a woman;
• one member appointed by the Government;
• one judicial magistrate elected by his or her peers; and
• one public prosecution magistrate elected by his or her peers.
In addition, the Law provided that in future:
• the President of the CNE would be elected by the National Parliament, rather than being chosen by the Commissioners themselves, but the Secretary of the CNE would be chosen by the Commissioners from within their own ranks; and
• the structure of the Secretariat of the CNE would be specified by law, rather than determined by the CNE itself.
2. Significant powers to be exercised by the CNE President were also specified in the Law.
Several aspects of this structure are worthy of attention.
a. First, the guaranteed representation of civil society representatives on the CNE has been eliminated, making it a body which in future could potentially consist purely of public functionaries.
b. The fact that four out of the seven members are to be chosen by the Government and the Parliament means that a government supported by a parliamentary majority could potentially choose members who as a group could dominate or even control the decisions of the CNE.
c. The guaranteed female membership of the CNE has been reduced from four out of fifteen to one out of five.
d. The reduction in the size of the CNE means that it will no longer be possible for a CNE Commissioner to be deployed in every district to oversee the district vote tabulation.
3. Law no. 7/2016 has been somewhat controversial. The President of the Republic identified a range of concerns in a press release dated 9 June 2016:
‘His Excellency the President of the Republic, Taur Matan Ruak, expresses his concern over the implementation of the Law of Election Administration Bodies, which was enacted last week.
This parliamentary law intends to replace members of the National Election Board before the end of the term in office to which they were appointed. The appointment of a new NEB such a short time away from electoral acts as important as the upcoming elections for traditional leaderships, later this year, and the presidential and parliamentary elections of 2017, puts into question the proper exercise of the powers of supervision over voter registration and the elections themselves, and raises doubt among the people on the independence of the NEB. A new NEB will not have time to get familiarized with the duties to perform in such a short period, and its replacement in the middle of the term will certainly be seen as an interference with the independence of the NEB, which is protected by Article 65 of the Constitution. It should also be noted that this change was introduced by the National Parliament, and it was neither proposed by the Government nor endorsed by the President of the Republic.
The President of the Republic requested a preventive review of the constitutionality of this piece of legislation to the Court of Appeals, who despite the contrary opinion of the Public Prosecutor’s Office and most observers, did not declare the unconstitutionality of this legislative measure. Nevertheless, the President of the Republic politically vetoed this law, for not agreeing with the solution, which, after being confirmed under Article 88 §3 of the Constitution, he was forced to enact. …’.
ATLEOM has not been able to obtain any document setting out reasoning underpinning the position taken by the Court of Appeal, or confirming that the issues potentially arising from the Law were put to the Court in detail and comprehensively considered.
Article 6, subarticle 1 of Law no. 5/2006, as amended, does specify that:
‘CNE members cannot be removed and are independent in implementing their office and are not liable for the decisions made and votes cast, in similar terms as judges.’ (‘Os membros da CNE são inamovíveis e independentes no exercício do mandato e não respondem pelas decisões que tomarem e votos que exprimirem no exercício das suas funções, nos mesmos termos que os magistrados judiciais.’)
This ‘guarantee’, practically identical in relation to security of tenure of CNE members to the provision originally enacted in 2006, has now been shown to be fundamentally hollow and ineffective, as the events of 2016 have made it clear that a parliamentary majority can remove CNE members through the artifice of legislation restructuring the body.
The mechanism for removal of members of supposedly independent election management bodies (EMBs) is not a mere point of administrative detail. It has been cogently observed that:
‘EMB members’ security of tenure and immunity from unwarranted harassment – such as salary cuts, reductions in conditions of service or malicious prosecution – and from the danger of removal from office by either the executive or any other authority, provides a framework within which members of the EMB can carry out their work impartially, professionally, without fear and favour, and resisting political pressures. EMB members may be less confident about taking decisions that are unpopular with the executive or legislature if they know that they may be removed from office, or their salaries and conditions may be reduced, without due process of law.’. (International Institute for Democracy and Electoral Assistance, Electoral Management Design – Revised Edition, Stockholm, 2014, p. 107.)
On that, ATLEOM notes that it would have been open to the Parliament to enact changes to the structure of CNE which could have been implemented over time in such a way as to protect the tenure of the Commissioners in place, but that it chose not to do so.
Overall, the way in which the incumbent CNE Commissioners were removed from office in 2016 without any judicial assessment of misconduct or unfitness for office constitutes the most significant undermining of independent electoral administration in Timor-Leste since the restoration of independence in 2002.
4. LATE LEGISLATION
The importance of having a stable and well-understood legal framework for an election has been highlighted as follows.
‘Election legislation should be enacted sufficiently far in advance of an election date to provide political participants and voters with adequate time to become familiar with the rules of the election processes. Election legislation enacted at the last minute tends to undermine the legitimacy and the credibility of the law and prevents political participants and voters from becoming informed in a timely manner about the rules of the election processes.’ (International Institute for Democracy and Electoral Assistance, International Electoral Standards – Guidelines for reviewing the legal framework of elections, Stockholm, 2002, p. 15.)
The significance of this was further spelt out by the United Nations Electoral Certification Team for the 2007 elections in Timor-Leste, at paragraph 11 of its Fourth Report:
‘The Team emphasises that a key element … is that the relevant provisions be promulgated in time for those who need to act on them to be able to plan their activities around, and base their behaviour on, the legal requirements. Where the procedures to be applied are unspecified or unclear:
(i) the ability of the electoral administration to design and produce forms, prepare for the polling process, develop training manuals and materials, and train staff;
(ii) the ability of political parties and candidates to ensure that their candidates, agents and supporters are aware of, and comply with, the law; and
(iii) the ability of domestic and international observers to plan and prepare for their activities,
are all compromised.’
Taking that into account, the Certification Team recommended at paragraph 202 of its Eight and Final Report that:
‘… a process be put in place for preventing last minute changes to the legal framework. There should be an absolute prohibition on changes to the legal framework after an election date has been fixed, but ideally the moratorium should run for at least six months prior to an election.’.
Legislative action taken by the Parliament in early 2017 represented a substantial departure from that reasonable and achievable approach.
The dates for the 2017 presidential election having been proclaimed by the President of the Republic on 16 January 2017, the Parliament proceeded to consider what ultimately became Law no. 4/2017 of 23 February 2017, which made significant changes to the presidential election process. The law had been passed by the Parliament only at the end of January 2017 and promulgated on 27 February, though drafts had been in circulation for some weeks before then. Among other things, the drafts and the Law as finally promulgated both specified that the power to make detailed regulations relating to the electoral process was to be taken from the CNE and given to the Government.
The effect of these changes was to create a state of profound uncertainty as to major elements of the electoral process, which persisted until the publication of a series of government decrees in an extraordinary number of the Jornal da Republica on 27 February 2017 (which, as at 9 March 2017, had not be published electronically on the website of the Jornal). It has been made clear to ATLEOM that the impacts of this uncertainty on the election administration and on stakeholders were almost exactly as foreseen by the UN Certification Team in 2007.
The way in which this legislative change was approached by the Parliament exemplified worst rather than best practice, and has been deleterious to the election process. Virtually all of the changes made by Law no. 4/2017 could have been enacted much earlier, so as to provide at least six months for them to be implemented and publicised, and the mission has not been made aware of any compelling justification for the way in which significant amendments were left to the last moment.
ATLEOM notes that these legal changes are now in place and are unlikely to be changed before the parliamentary elections. However it notes with serious concern and disappointment the poor democratic practice embedded in the content of these changes and the exceptionally late passage of the requisite legislation, which impacted upon some aspects of the election process, in particular that training of local election staff.