21 October 2017

Timorese Security Sector CSO Fundasaun Mahein says Dili exodus begins in fear of conflict as citizens and foreigners flee

ETLJB 21 October 2017 Political Instability Already Causing Population Movement in East Timor amid fears of Violent Conflict - According to the East Timorese security sector monitoring civil society organisation, Fundasaun Mahein (FM), both citizens and foreigners have begun leaving East Timor in the fear of the country collapsing into violent conflict reminiscent of the 2006 Crisis.

"Anxiety is growing among the people of Timor-Leste. Conflicting interpretations of the Constitution mean that the main political parties do not agree about what will happen in the event that the Government falls."

FM says that under the Constitution, the minority FRETILIN Government, headed by Mari Alkatiri, will fall if the National Parliament rejects the government's program again. It has already been rejected once.

The relevant provisions of the Constitution of Timor-Leste provide as follows:

Section 112
(Dismissal of the Government)
1. The dismissal of the Government shall occur when:
a) A new legislative term begins;
b) The President of the Republic accepts the resignation of the Prime Minister;
c) The Prime Minister dies or is suffering from a permanent physical disability;
d) Its programme is rejected for the second consecutive time;
e) A vote of confidence is not passed; 
f) A vote of no confidence is passed by an absolute majority of the Members in
full exercise of their functions;

2. The President of the Republic shall only dismiss the Prime Minister in accordance
with the cases provided for in the previous item and when it is deemed necessary
to ensure the regular functioning of the democratic institutions, after consultation
with the Council of State

FM further asserts that a second rejection of the new government's policy program is highly likely to be rejected again by the National Parliament thus triggering the operation of Section 112(d). The reason advanced for this is because governing coalition lacks a Parliamentary majority.  And that is the case. FRETILIN secured 23 seats and PD only 7. Thirty votes in the Parliament comprised of 65 deputies is not sufficient to govern. This is an anomalous political phenomena. CNRT, with 22 seats, PLP with 8 and KHUNTO with 5 means that the opposition parties' deputies outnumber the government coalition deputies at 35:30.

FRETILIN and PD do not appear to have the Parliamentary majority that entitles them to govern in any practical sense. PLP is more likely to side with CNRT to block the FRETILIN-PD program.

The question then is what happens if the Alkatiri government's program is rejected a second times. Firstly, regard must be had to section 112(2) of the Constitution. It raises the first problem of construction of the constitutional text. Section 112(2) seems to confer a discretion on the President not to dismiss the Prime Minister even if section 112(1)(d) is enlivened because of the additional words in that provision "when it is deemed necessary to ensure the regular functioning of the democratic institutions and after consultation with the Council of State."

Who deems the necessity in this case is not specified. Ultimately, constitutional questions are decided by the Court of Appeal; the judiciary rather than any other organ of state. But it could be argued that that is a decision to be made in the first instance by the President himself. The incumbent President is Lu Olo, long-time and tightly-bound comrade of Mari Alkatiri. As for the Council of State, let us regard the following part of the Constitution:

CHAPTER III
COUNCIL OF STATE
Section 90
(Council of State)
1. The Council of State is the political advisory body of the President of the Republic
and shall be headed by him or herself.
2. The Council of State shall comprise:
a) Former Presidents of the Republic who were not removed from office; 
b) The Speaker of the National Parliament;
c) The Prime Minister;
d) Five citizens elected by the National Parliament in accordance with the
principle of proportional representation and for the period corresponding
to the legislative term, provided that they are not members of the organs
of sovereignty.
e) Five citizens designated by the President of the Republic for the period corresponding to the term of office of the President, provided that they are not members of the organs of sovereignty. 

Presently, that would mean that the most powerful figures on the Council of State would be:

1. former Presidents, Xanana Gusmao (CNRT), Jose Ramos Horta (IND)
2. The Speaker Aniceto Longuinhos Guterres Lopes (FRETILIN)
3. 5 citizens elected by the NP (unlikely that FRETILIN and PD would get a majority on this elected group if political alliances have not shifted since the Parliamentary election)
4. 5 citizens designated by President Lu-Olo (FRETILIN, an opportunity to appoint FRETILIN allies)

What the decision making process of this Council of State or its political constitution would be is not really clear but the Constitution does go on to provide that:

Section 91
(Competence, organisation and functioning of the Council of State)
1. It is incumbent upon the Council of State to:
a) Express its opinion on the dissolution of the National Parliament;
b) Express its opinion on the dismissal of the Government;
c) Express its opinion on the declaration of war and the making of peace;
d) Express its opinion on any other cases set out in the Constitution and advise
the President of the Republic in the exercise of his or her functions, as
requested by the President;
e) To draft its Rules of Procedures;
2. The meetings of the Council of State shall not be open to the public.
3. The organisation and functioning of the Council of State shall be established by law. 

So, the Council of State may only express its opinion, presumably to the President, on the question whether all of the provisions of section 112 have been fulfilled.

Then there is a second issue as articulated by FM that, "according to the FRETILIN-PD coalition, the Constitution states that in this situation the President of the Republic must call early elections. In contrast, the opposition parties—namely the CNRT, PLP, and KHUNTO—argue that after the fall of the Government, the President of the Republic must offer the opposition parties the chance to form a governing coalition. In preparation for this contingency, the three opposition parties declared themselves a “Parliamentary Majority Alliance” last Thursday."

There does not appear to be any clarity in the Constitution on whether or not an election must be held or other parties already and recently elected must be given the opportunity to form government.

Hence, it is essentially a political process and, in the end, will be a matter for interpretation of the Constitution by the Supreme Court of Justice whose functions are discharged by the Court of Appeal.

More alarmingly, FM posits that the "contradictory interpretations make many Timorese people recall the 2006 Crisis, in which competition between different political actors led to chaos in Dili" and that, recalling the chaos of 2006,  many East Timorese "fear that the ongoing political tensions could lead to the return of foreign military forces to Timor-Leste."

According to FM, the exodus has already begun such is the fear of the threat of conflict. "Every day, increasing numbers of people board buses bound for the rural districts, indicating a desire to escape the political tensions in Dili. Even more disturbingly, more and more people are exiting Timor-Leste altogether, either by airplane or across the land frontier with Indonesia. These trends reflect concerns that, as in 2006, political power struggles will disrupt the lives of ordinary citizens. In the absence of constructive political action, this panic will persist."

Whether or not the FM reports and its own fears are real is yet to be corroborated but the situation in Dili seems to be teetering ever closer to further instability and possibly civil strife, military and police interventions and possibly another international security presence.

One hopes that this is not the case and that the Timorese leaders will reach a political compromise rather than demolish the civil peace in pursuit of their political agendas.  One hopes that a lawful process will prevail, that Constitutionality will be the guiding principle and that the final decision on the political process and interpretation of the Constitution will be done in peace by the judicial organs of the East Timorese state, not by the blood of the people.

ETLJB
21 October 2017 (c)
In memoriam of the 25th of May 2006 Massacre Victims and Families
Government faces uncertainty after Parliamentary Defeat
Government prepares to resubmit the Program to the National Parliament, respecting democracy and stability
Police Commander maintains Timor-Leste tranquil during the Government program debate
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