21 July 2018

East Timor President Lu-Olo Discredits Office of President & Perverts the Will of the People

EDITED* 24/07/2018 The East Timor Guide Post published an English translation of a media report dated 17 July 2018 by Suara Timor Lorosa'e on political circumstances in East Timor that bears some closer scrutiny.

There follows the text of the report:

"Timor-Leste’s govt gaps: lack of cooperation between Taur and Lu-Olo Suara Timor Lorosae, July 17, 2018 language source: Tetun - Timor-Leste’s new government still has ministerial gaps after three weeks into office because of lack of cooperation between Prime Minister, Taur Matan Ruak and President of the Republic, Francisco Guterres Lu-Olo.

Universidade Dili (UNDIL)’s Rector, Estavao Da Costa Belo said Timor-Leste was facing crisis of coordination between President of the Republic and Prime Minister which left gaps in the new government.

“As a citizen, I am sad seeing impasse in the country continues extending and it happens because of lack of coordination between the government and President of the Republic,” Belo told STL at his office on Monday (16/07).

He said the top leaders of the coalition party which formed the government should let Prime Minister to weigh up candidates that it presented, so that Prime Minister could negotiate with President of the Republic, otherwise, the deadlock would not end. In addition, civil society organization, Fundasaun Mahein’s Director, Nelson Belo said the extending standoff after fresh election affected Timorese people and the country’s development, therefore, it was important for those in power to sit together and resolve the current political situation.

Epifanio Faculto, a survivor of Santa Cruz Massacre said he was sad with the attitude of Timor-Leste’s leaders which prolonged the impasse because it affected Timorese people’s economy and the country’s development."

In another media report, the following English translation text appears:

PM Ruak defends the innocence of the rejected-minister candidates Timor Post, July 17, 2018 language source: Tetun

Timor-Leste’s Prime Minister (PM), Taur Matan Ruak keeps the list of nominated ministers which refused by President of the Republic, Francisco Guterres Lu-Olo because according to Timor-Leste’s law these people are innocent before court found them guilty.

On June 22, 2018, President of the Republic had refused to inaugurate 11 nominated ministers from the coalition party, Alliance of Change for Progress (AMP) because of corruption investigation.

“Prime Minister’s position is to keep the list that he presented to President of the Republic before inauguration on June 22,” Minister of Legislative Reform and Parliamentary Issues, Fidelis Magalhaes told media after
participating in a plenary session at National Parliament on Monday (16/07).

The AMP members that President Lu-Olo refused to inaugurate on June 22 included:

Helder Lopes,
Francisco Kalbuadi Lay,
Gastão Sousa,
Tomas Cabral,
Marcos Da Cruz,
Sergio Lobo, Virgilo Smith,
Jacinto Rigoberto,
Antonio Verdia,
Jose Turquel, and
Filomeno Paixão.

However, after two weeks of discussion since the government took office, President of the Republic had inaugurated Filomeno Paixao as Minister of Defense on July 10th and last week, Prime Minister Ruak said two candidates namely Gastão Sousa and Marcos Da Cruz had stepped down from their candidacies and they would be replaced by Xanana Gusmão and Rogerio Mendonça. Magalhaes said Taur Matan Ruak could not choose other people to replace these candidates since Dili District Court had said that these candidates’ names did not appear in any case that currently filed in court."

The Facts
For present purposes, the relevant facts are that:
The democratically elected government has put forward the names of Ministers to the President.
The President has refused to inaugurate 10 Ministerial candidates.

The Issue
The most central question raised by these facts is whether it is within the constitutional powers of the President; whether the President has acted constitutionally, or whether the office of President has been discredited beyond democratically acceptable principles. It is not enough to hide behind the text of the Constitution.

The Constitution
This calls for an examination of:

CAPÍTULO II
FORMAÇÃO E RESPONSABILIDADE
Artigo 106.º
(Nomeação)
1. O Primeiro-Ministro é indigitado pelo partido mais votado ou pela aliança de
partidos com maioria parlamentar e nomeado pelo Presidente da República, ouvidos
os partidos políticos representados no Parlamento Nacional.
2. Os restantes membros do Governo são nomeados pelo Presidente da República, sob
proposta do Primeiro-Ministro.

Google translate provides a sufficient English translation. THis translation is taken from the Portuguese text of the Constitution published by government of East Timor.

CHAPTER II
FORMATION AND RESPONSIBILITY
Article 106
(Appointment)
1. The Prime Minister is nominated by the most voted party or by the alliance parties with a parliamentary majority and appointed by the President of the Republic, the political parties represented in the National Parliament.
2. The remaining members of the Government shall be appointed by the President upon the proposal of the Prime Minister.

The words are clear enough in their ordinary meaning.

There is no constitutional jurisprudence to interpret the provisions.

It is my opinion that the President's powers in relation to the appointment of the Executives Ministers do not permit him to refuse the government's candidates.

In doing so, the President has acted unconstitutionally and ought to be called before the Parliament and the Court of Appeal to account accordingly. He has discredited the Office of the President of the Democratic Republic. He has perverted the will of the people expressed by elections.

The President should resign.


Warren L. Wright BA LLB
Lawyer

Sources

Constituição República Democrática de Timor-Leste  http://timor-leste.gov.tl/?cat=37

Article 106: Lost in Translation http://www.easttimorlawandjusticebulletin.com/2018/05/constitution-article-106-lost-in.html
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* Edit Addition of Footnote 24 July 2018

In as far as can be in a true democracy, the Chief of the Executive must act on advice from the Prime Minister.

"The role of the Governor-General.....While Executive Government powers are exercised by the Governor-General or in his or her name, such actions are carried out as advised by the Prime Minister and Ministers." 

Save for the Reserve Powers, all of the Executive chief's powers are only constitutionally and democratically exercised under the ultimate authority of the mandate of the democratically elected government that is the highest expression of the will of the people, in democratic States.
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