ETLJB 29 November 2012 - In an ongoing trend in the policies of the governments headed by Prime Minister Xanana Gusmao and his political allies, the role of the military in internal security has again been emphasised in the latest reported remarks on the matter.
Televizaun de Timor-Leste reported on 27 November 2012 remarks by the Prime Minister following his attendance at the Community of Portuguese Language Nations Police Meeting at Hotel Timor the previous day.
An English translation of the report states that the Prime Minister, in that capacity and as the Minister for Defence and Security, said that the Government would not tolerate any acts of crime in the country.
He called on the Timorese people to cooperate with defense and security institutions to strengthen peace and stability in Timor-Leste saying "I am the Minister of Defence and Security and I will not tolerate any acts of
crime. I am calling on you (the people) to
cooperate with the security institutions to strengthen peace and stability
in the country," he said.
Firstly, in the opinion of ETLJB, it is problematical to resolve the responsibilities of both positions of Prime Minister and Minister for Defence and Security in one person. It would be better if those functions were exercised by different members of the Government with the Prime Minister acting on the advice of a separate Minister for Defence and Security and his Council of Ministers. This would resolve any real or perceived conflict of interest of having both functions vested in the same person. One of the central tenets of democracy is the division of powers not just between the organs of state but within the executive as well so that power is spread more evenly and there are clear divisions between the different functions of the ministries. Each ministry requires particular competencies and specialisations and the critical functions of security and defence should be focused on exclusively by one Minister. Decisions by the Prime Minister relating to defence and security interventions by the government might also be perceived to be more impartial and independent of the Prime Minister's own caprices.
Secondly, and much more importantly, the military has no constitutionally proper role in internal security and law enforcement. That is the mandate of the police and only the police. That is clearly spelt out in Part V of the Constitution, the relevant parts of which are set out below.
PART V NATIONAL DEFENCE AND SECURITY
Section 146 (Defence Force)
1. The East Timor defence force, FALINTIL-ETDF, composed exclusively by national citizens, has the responsibility of providing military defence for the Democratic Republic of East Timor and shall have a single system of organisation for the whole national territory.
2. FALINTIL-ETDF shall guarantee national independence, territorial integrity and the freedom and security of the population against any external aggression or threat in respect for the constitutional order.
3. FALINTIL-ETDF shall be non-partisan and shall owe obedience to the competent organs of sovereignty in accordance with the Constitution and the laws, and shall not intervene in political matters.
Section 147(Police and security forces)
1. The police shall defend the democratic legality and guarantee the internal security of the citizens, and shall be strictly non-partisan.
Those provisions are consistent with and express the proper roles of the defence force and the police in a democratic state under the rule of law - not one under the arbitrary will of the executive.
The confusion of the roles of the military and the police constitute a clear and present threat to the constitutional democratic order and the rule of law. Wilson has written on the matter in relation to the joint military-police operations during the 2008 crisis in East Timor following the attempted assassination of the President and the subsequent hunt for the rebel soldiers lead by Reinado.
Wilson, in her article, Joint Command for PNTL and F-FDTL Undermines Rule of Law and Security Sector Reform in Timor-Leste notes, in relation to the shooting of then-President Ramos-Horta, that:
"The events of last Monday are a terrible setback for peace and stability in Timor-Leste. However, the events also highlight serious existing problems of ambiguity regarding responsibilities for public security, police reform and wider security sector reform processes currently underway in Timor-Leste . More alarmingly, the hasty decision of the Timor-Leste Government, last Sunday 17 February to place the police under military command is a time bomb that has the capacity to seriously affect not only the security sector reform process in Timor-Leste, but also further undermine the extremely fragile rule of law."
She noted further that the state leaders "unanimously and vociferously supported the decision to deploy F-FDTL, commencing an early contribution to public confusion about the respective roles of PNTL and F-FDTL.
The case not only illustrated the lack of understanding of the applicable law by the leadership but also the lack of legislative and policy framework for enlisting military aid to a civil power. It also indicated a much deeper problem of a perceived lack of legitimacy of the PNTL, and a widespread belief in the affected communities that it was only F-FDTL who could really provide internal security (Wilson 2008).
The clear separation of the roles of the police and the military, and their conduct in accordance with the law, should be a fundamental tenet of the rule of law in any country. This is clearly not happening at present in Timor-Leste."
That set a bad precedent and the tendency to refer to the military as one of the guarantors of internal security in contradiction to its constitutional role to the present day is an ominous sign of things to come should social instability lead to further disintegrations of the rule of law in East Timor in the future.
In the meantime, as the presence of the international community is winding down, the voice of the military, through the Chief of the Defence Forces, Major General Lere Anan Timor has been growing louder and has been heard in relation to matters upon which the military should remain silent.
Let us hope that East Timor does not become a monstrous military dictatorship as happened in so many other Southeast Asian states following national independence such as Indonesia, Cambodia, Laos, Vietnam and Burma, for example.
Read Wilson's full article here on the East Timor Law Journal.
Author: Warren L. Wright