16 August 2018

East Timor Constitution on the Dismissal of the President

PM Taur Matan Ruak: Democratic mandate to
govern East Timor.
"The President has failed in his foremost duty as the symbol and guarantor of the smooth functioning of democratic institutions."

It is an opportune moment to examine what the Constitution of East Timor says about the dismissal of the elected President.

Machine translation of Articles of Constitution into English [1]

Section 74 (Definition) 1. The President of the Republic is the Head of State and the symbol and guarantor of national independence and unity of the State and of the smooth functioning of democratic institutions.

Article 79
(Criminal liability and constitutional obligations)
1. The President of the Republic shall enjoy immunity in the performance of his duties.
2. The President of the Republic shall answer before the Supreme Court of Justice for crimes committed in the performance of their duties and for the clear and serious breach of their constitutional obligations.
3. The initiative of the procedure shall lie with the National Parliament, proposing a
fifth and deliberation adopted by a two-thirds majority of all Members.
4. The judgment shall be delivered by the Plenary of the Supreme Court of Justice within
maximum of thirty days.
5. The conviction implies the dismissal of the position and the impossibility of re-election.
6. For crimes other than the performance of his duties, the President of the Republic
also responds before the Supreme Court of Justice.
dismissal only in case of conviction in actual prison.
7. In the cases referred to in the preceding paragraph, immunity is also initiative of the National Parliament in accordance with the provisions of this Article.
President Lu-Olo: No constitutional veto
power on appointment of Ministers.

The question of the dismissal of the President flows from his present unconstitutional position in relation to the appointment of the Government through the Prime Minister Taur Matan Ruak whose political party holds a clear majority in the Parliament. How could any democratic constitution permit a symbolic head of state to paralyse the State and express such contempt for the will and well-being of the population.

By Article 74, the general duties of the President are expressed as “the symbol and guarantor of national independence and unity of the State and of the smooth functioning of democratic institutions”.

The present circumstances in Dili compel the further enquiry whether the democratic institutions of East Timor are functioning smoothly.

It seems apparent from reports on the actuality facing the people, the Prime Minister, his Ministers, Government, the Council of Ministers, the State agents supplying services to the community such as health and electricity, and the Parliament are not functioning smoothly but erratically and unpredictably.

This causes instability in governance. Such instability should not have been conjured up by the President Lu-Olo for it was so; without any constitutional basis or legitimacy. The President has failed in his foremost duty as the symbol and guarantor of the smooth functioning of democratic institutions.

Therefore, we must look at Article 79:

“2. The President of the Republic shall answer before the Supreme Court of Justice for ……. the clear and serious breach of their constitutional obligations. The President has failed to guarantee democratic rule and has done all he can, constitutionally or not, to prevent the ruling party from  governing. The Government is incomplete months after the election. How could it be asserted that democratic institutions are functioning smoothly?

3. The initiative of the procedure shall lie with the National Parliament, proposing a fifth and deliberation adopted by a two-thirds majority of all Members.”

Article 79 sets out the constitutional procedures and requirements for the summoning of the President by the Supreme Court of Justice (presently the Tribunal Recurso since no government has ever constituted the Supreme Court of Justice) at the behest of the Parliament provided the prescribed percentages are met. A negative finding by the Court has dire consequences for the President.

Government instability that has been caused by the President’s refusal of the elected Prime Minister’s Ministers is clear enough evidence that the Constitution is not functioning or being implemented in a democratic manner but in an anti-democratic manner that should be accounted for according to Law.

The fact of the matter is that a democratically elected leader who controls the Legislature and the Government is being prevented, hindered and harassed by the President from governing as the Prime Minister entitled so to do in accordance with democratic ideas and the Constitution.

Warren L. Wright
Lawyer
[1] Original Portuguese Text:

Artigo 74.º (Definição) 1. O Presidente da República é o Chefe do Estado, símbolo e garante da independência nacional, da unidade do Estado e do regular funcionamento das instituições democráticas.

Artigo 79.º (Responsabilidade criminal e obrigações constitucionais)

1. O Presidente da República goza de imunidade no exercício das suas funções.

2. O Presidente da República responde perante o Supremo Tribunal de Justiça por crimes praticados no exercício das suas funções e pela violação clara e grave das suas obrigações constitucionais.

3. A iniciativa do processo cabe ao Parlamento Nacional, mediante proposta de um quinto e deliberação aprovada por maioria de dois terços de todos os Deputados.

4. O acórdão é proferido pelo Plenário do Supremo Tribunal de Justiça no prazo máximo de trinta dias. 5. A condenação implica a destituição do cargo e a impossibilidade de reeleição. 6. Por crimes estranhos ao exercício das suas funções, o Presidente da República responde igualmente perante o Supremo Tribunal de Justiça, verificando-se a destituição do cargo apenas em caso de condenação em pena de prisão efectiva. 7. Nos casos previstos no número anterior, a imunidade é igualmente levantada por iniciativa do Parlamento Nacional em conformidade com o disposto no n.˚ 3 do presente artigo.

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