17 August 2018

East Timor Constitution on Criminal liability of the members of Government

The prosecution and the courts, or as we see in Article 113, the Parliament, are the appropriate supervisors of government members not the President.

It is always worth recalling Section 92 (Definition) in relation to the Parliament:

“The National Parliament is the organ of sovereignty of the Democratic Republic of East Timor that represents all Timorese citizens and is vested with legislative supervisory and political decision making powers.”

Similarly,  Section 103 (Definition) is worthy of note for present purposes:

“The Government is the organ of sovereignty responsible for conducting and executing the general policy of the country and is the supreme organ of Public Administration.” Governance is public administration. Governance is unstable, unpredictable and problematical even though the Prime Minister has the majority support of the National Parliament and of the people.

Notwithstanding, the President has refused to appoint the Prime Minister’s candidates for Ministers of State. The Prime Minister is acting under the democratic authority of the Parliament elected in 2018 such that a substantial majority of the seats were taken by the AMP. Taur Matan Ruak has the constitutional right to have his Ministers appointed by the President. All the PM has to do is nominate. The President is then bound to appoint them, just as he is bound to appoint the Prime Minister who is in control of the Legislature.

There is at least one Ministerial Standard arguable from Article 113 (Criminal liability of the members of Government):

“1. Where a member of the Government is charged with a criminal offence punishable with a sentence of imprisonment for more than two years, he or she shall be suspended from his or her functions so that the proceedings can be pursued.

2. Where a member of the Government is charged with a criminal offence punishable with a sentence of imprisonment for a maximum of two years, the National Parliament shall decide whether or not that member of the Government shall be suspended so that the proceedings can be pursued.”

This general standard can be applied to the President’s ongoing refusal to appoint the nominated Ministers of the Government.

The question would then revolve around whether or not in fact any of the Ministerial candidates have been charged with a criminal offence in accordance with Article 113. If they were, then there might be some grounds for arguing in support of the President’s intransigence and recalcitrance. But it appears to me that such matters are for the Parliament to deal with in accordance with the general role and the principles behind the specific powers of the Parliament in Article 113(2).

According to one report, President Francisco Guterres Lu Olo stated that eight nominated ministers, including for finance and defense, and three vice-ministers "can't be sworn in because the public prosecutor's office is investigating corruption cases against them".

Investigation is not enough. There must be criminal charges of the nature mentioned in Article 113 and this should apply to the Ministerial worthiness of candidates.

It was also reported that the President has stated that some of the Ministerial candidates have previous corruption convictions.

This still does not confer on him any discretion to refuse the Prime Minister’s candidates. He must appoint upon nomination by the Prime Minster and nothing else. That is what the Constitution directs him to do.

The prosecution and the courts, or as we see in Article 113, the Parliament, are the appropriate supervisors of government members not the President.

The continuing unconstitutionality, problematical anti-democratic behaviour by the President and the instability of governance challenges the civil peace.


Warren L. Wright

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