There have been changes of government in Australia and East Timor in recent months. These changes present fresh challenges and new possibilities in the relationship across the Timor trough.
East Timor has had a dreadful couple of years with civil unrest, an emergency resulting in tens of thousands of internally displaced citizens, and an election which did not result in a smooth transfer of legitimate political power. The new Australian government would do well to ensure that appropriate processes are followed in providing ongoing assistance to the new Timorese government and Timorese society.
Australian and New Zealand troops are still patrolling the streets of Dili. They are known as the ISF — the international security force. They are on the streets under the terms of a bilateral agreement signed by Mr Ramos Horta for the government of East Timor, following an invitation extended in May 2006 by the now dismissed Prime Minister, Mari Alkatiri, and President Gusmao who joined the President of the National Parliament with a signed request for assistance.
Eighteen months on, there has been no imperative for Australian forces to exchange berets and operate under UN auspices as occurred with the original INTERFET engagement after the 1999 popular consultation leading to independence. Post Iraq, John Howard and Alexander Downer were happy to proceed in a more unilateral fashion, responding to requests from their friends in Dili. Maintenance of this status quo is risky.
The FRETILIN party and many of its supporters still feel cheated by President Horta's decision to invite Gusmao to form a government, even though FRETILIN outpolled Gusmao's party.
Most Australians argue that Gusmao was entitled to form government because he was able to marshal a coalition of parties with a majority of votes in the parliament. But Mari Alkatiri, the head of FRETILIN, which got the most votes of any party, remains adamant that under the Timorese constitution he should have been given the first option to form a government. He thinks he would have been ultimately able to form a coalition.
Having missed out, he and his supporters continue to question the legitimacy of the Gusmao government. They also question the legitimacy of Horta and Gusmao's request to have Australian troops continuing to patrol Dili. In July Horta asked the Howard Government to allow Australian troops to remain at least until the end of 2008.
Surprisingly, the original agreement relating to the Australian troop presence was never approved by the Timorese Council of Ministers. Neither has it been approved by the National Parliament. Key FRETILIN members are adamant that such an agreement is not constitutionally valid unless it has the approval either of the Council of Ministers or of the National Parliament, preferably both.
It is troubling that these constitutional procedures may have been bypassed so that the Australia-Timor agreement did not have to be presented to the Australian parliament in accordance with our own procedures for international agreements and treaties.
The change of government in Canberra provides clear air for revisiting the terms of the agreement. If Australian troops are to serve on the streets of Dili but not as part of a UN peacekeeping force, they should serve only if their presence is approved by the Timorese Council of Ministers and its National Parliament.
The farcical stand-off between the rebel leader Alfredo Reinado and the authorities in East Timor highlights the problem. President Horta has abused the judiciary for wanting to pursue criminal charges against Reinado. Senior FRETILIN figures have criticised Brigadier John Hutcheson, the Australian military commander, who decided to withdraw his troops from the Reinado manhunt in response to a request from President Horta.
There is a growing perception among local critics of the Timor government that the Australian troops are the personal troops of the President given their presence without full constitutional mandate and their ready response to Horta's arbitrary command, which showed little respect for the traditional separation of powers between the Executive and the judiciary.
Now is the time for Australia to clarify the terms of its military presence. Eighteen months since the original crisis, there are still thousands of displaced persons living under plastic tents in Dili. The situation is not stable. Politically orchestrated East-West divisions have been played out on the streets, in political parties, and in the Timor military. It is not fair to Australian troops to have them patrolling in constitutionally suspect circumstances.
The recent oil and gas dispute over the Timor Sea provides a salutary lesson. There are many Australians as well as Timorese who wonder about the fairness of the final deal thrashed out by the Howard and Alkatiri governments. Despite the complexity of the issue, a majority of citizens in both countries were reassured by the overwhelming vote of the Timor parliament across party lines to support the final outcome.
Critics of the new government and president are suspicious that Gusmao and Horta are too close to Australia. Thus they have reason to be suspicious of arrangements with Australia when those arrangements have not been approved by the parliament or the Council of Ministers. Transparent arrangements following the letter and spirit of the Timor constitution could save everyone grief in both countries.
Frank Brennan SJ AO was director of the Jesuit Refugee Service in East Timor for 15 months from 2000-1. He was adviser to the Church Working Group on the Constitution. He writes from East Timor on his first return visit since the troubles 18 months ago.