Wednesday, 23 May 2012
The Unconstitutional, Irrational and Damaging Decision by President Jose Ramos Horta: A legal opinion on the Formation of an Unconstitutional Government in Timor-Leste
Sahe Da Silva LLB (Hons) BBus & José Teixeira LLB BA
This opinion builds on an earlier opinion “Legal opinion on the appointment of the Prime Minister and the formation of the Government in Timor-Leste” published by the East Timor Law Journal on 11 July 2007. It examines the unconstitutional decision of President Jose Ramos Horta to invite the second most voted party to form government (as opposed to the most voted party). Set out below is our analysis of President Ramos Horta’s decision:
1. The decision to invite the second most voted party to form government is unconstitutional. As stated in the previous opinion, the mandate to form government is given to the party or a pre-election alliance which receives the most votes in the parliamentary elections (please see previous opinion for our analysis on this point). This is because the electorate votes for the policies and programs of a political party or a distinct and separate alliance. In the last election there were only two distinct and separate alliances, that of PSD/ASDT and KOTA/PPT.
FRETILIN, as the “most voted party”, should have been invited first to form government and be given the opportunity to negotiate the passing of its program.
2. It is common practice in other countries which have similar systems to Timor-Leste to first invite the most voted party to form government and negotiate the passing of its programme. Commentators who argue that what has happened in Timor-Leste in relation to the formationof the new government is standard practice around the world have not acknowledged that certain steps must first be taken before the second most voted party is invited to form government.
3. Under the Constitution of Timor-Leste (which is different to Australia’s) the real test of strength of any government is whether it can pass its programme for national development through Parliament. This requires an absolute majority of the members of Parliament in full exercise of their functions. The government is dismissed if its programme is rejected two consecutive times.
4. Post election coalitions are only relevant to controlling Parliament, the supreme law making body and the most powerful institution under the Timor-Leste Constitution.
5. The second most voted party can form government, but only in certain situations relating to the failure of the most voted party to pass its programme for national development through parliament. The first situation where the second most voted party may be invited to form government is after the most voted party’s programme has been rejected twice and the government has been subsequently dismissed. When this happens there is a power vacuum because there is no specific provision in the constitution to invite the second most voted party to form government. A power vacuum will lead to the breakdown of national unity and threaten the smooth functioning of democratic institutions. To address the power vacuum, the President as the “guarantor of national independence and unity of the State and of the smooth functioning of democratic institutions” can invite the second most voted party to form government and attempt to pass its programme through National Parliament.
The second situation where the second most voted party may be invited toform government is where the most voted party decides it does not have the support in parliament to pass its programme and requests the President to invite the second most voted party to form government. However, this can only occur once the most voted party has at least been invited to form government and is given the opportunity to negotiate the passing of its programme with the other political parties with seats in Parliament.
6. There is no legal basis for President Jose Ramos Horta to use the election of the President of Parliament to decide which party should be invited to form government. This is because the election for President of Parliament (a person) is starkly different to that of a programme for national development, which as we stated above, is the real test of the strength of government. One can also question President Ramos Horta’s use of the election for President of Parliament as the basis for his decision given the vote was secret (ie it is impossible to confirm how the members of parliament actually voted).
7. President Jose Ramos Horta’s decision is damaging to democracy. By inviting the second most voted party to form government, he never gave FRETILIN, the most voted party, the opportunity and space to negotiate the passing of the programme. The President’s decision ignores the expectations of 120,000 people who voted for FRETILIN. The decision is also damaging to democracy because it is unconstitutional. In addition, by not inviting the most voted party to form government, President Jose Ramos Horta has set an unacceptable precedent. In the future, it could mean that the “most voted” party (or pre-election alliance) which has won 40% of the vote may not be able to form government if the remaining 60% of minor parties (and/or pre-election alliances) announce an informal post election coalition immediately as was the case after the 30 June 2007 parliamentary elections.
It is important to acknowledge that the most voted party won the elections, that it be asked to form government and that it be given the time and space to negotiate the passing of the programme.
8. President Ramos Horta’s decision is also irrational. If President Ramos Horta and FRETILIN both agreed on the need to form an inclusive government, then one has to seriously question the President’s decision to invite the second most voted party to form government.
9. The coalition between CNRT and its allies was not a coalition registered to compete in the parliamentary elections, but a loose grouping which was brought together in the days after the election results were announced. Despite arguing that they were a coalition within the meaning of article 106, at the first opportunity in parliament CNRT and its allies did not register in the Parliament as a grouping, that is, as a "bancada" (or bench). Had CNRT and its allies been a coalition or an alliance one would have thought that they would have registered as a “bancada”. Instead, CNRT and its allies (including each of PSD and ASDT which had formed a distinct and separate pre-election alliance) registered as individual parties with individual heads of each party in Parliament. This was presumably done to ensure that the leaders of each party got the distinct privileges that attach to being a leader of an individual party and the benefits that flow from having that status.
By taking this approach, CNRT and its allies have failed their own substantive test which formed the basis of their argument to be invited first to form government; i.e. they demonstrated that they were not really a "coalition" or "alliance" in the meaning of the word.
10. The unconstitutionality of President Ramos Horta’s decision is based on a legal interpretation of the Constitution, which ideally should be tested in the Court of Appeal, currently the highest court of law inTimor-Leste. However, the Court of Appeal should not be asked to hand down a decision on this matter because the current impasse is essentially a political problem, not a legal one. In Timor-Leste’s emerging democracy it is important that the judiciary be developed as an independent legal institution and not be put under extreme political pressure. Also, our political leaders must be responsible for the consequences of their decisions in relation to the formation of the unconstitutional government and not transfer responsibility to the Court of Appeal.
Sahe Da Silva Bachelor of Law (Honours) and Bachelor of Business (Accounting) from the University of Technology, Sydney
José Teixeira Bachelor of Law from the University of Queensland (St. Lucia), Bachelor of Arts (Politics and Economic History) from the University of New England
 Article 106 of the Constitution
 Articles 108 and 109 of the Constitution
 Articles 86(g) and section 112 Article 74 of the Constitution
Published in East Timor Law Journal on 10 September 2007
1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992