07 August 2018

East Timor: Democracy in Ruin by Presidential Unconstitutionality


"...it follows as a matter of logic, reason and jurisprudence that the actions of the President are prima facie unconstitutional."

This is what the Constitution of the Democratic Republic of East Timor provides in relation to the office of President of the Republic.

Section 85 (Competencies)
It is exclusively incumbent upon the President of the Republic:
a) To promulgate statutes and order the publication of resolutions by the National Parliament approving agreements and ratifying international treaties and conventions;
b) Exercise competencies inherent in the functions of Supreme Commander of the Defence Force;
c) To exercise the right of veto regarding any statutes within 30 days from the date of their receipt;
d) To appoint and swear in the Prime Minister designated by the party or alliance of parties with parliamentary majority after consultation with political parties sitting in the National Parliament;
e) To request the Supreme Court of Justice to undertake preventive appraisal and abstract review of the constitutionality of the rules, as well as verification of unconstitutionality by omission.
f) To submit relevant issues of national interest to a referendum as laid down in Section 66; g) To declare the state of siege or the state of emergency following authorisation of the National Parliament, after consultation with the Council of State, the Government and the Supreme Council of Defence and Security;
h) To declare war and make peace following a Government proposal, after consultation with the Council of State and the Supreme Council of Defence and Security, under authorisation of the National Parliament;
i) To grant pardons and commute sentences after consultation with the Government;
j) To award honorary titles, decorations and merits in accordance with the law.

Section 86 (Competencies with regard to other organs)
It is incumbent upon the President of the Republic, with regard to other organs:
a) To chair the Supreme Council of Defence and Security;
b) To chair the Council of State;
c) To set dates for presidential and legislative elections in accordance with the Law;
d) To request the convening of extraordinary sessions of the National Parliament, whenever imperative reasons of national interest so justify;
e) To address messages to the National Parliament and the country;
f) To dissolve the National Parliament in case of a serious institutional crisis preventing the formation of a government or the approval of the State Budget and lasting more than sixty days, after consultation with political parties sitting in the Parliament and with the Council of State, on pain of rendering the dissolution null and void, taking into consideration provisions of Section 100;
g) To dismiss the Government and remove the Prime Minister from office after the National Parliament has rejected his or her programme for two consecutive times.
h) To appoint, swear in and remove Government Members from office, following a proposal by the Prime-Minister, in accordance with item 2, Section 106;
i) To appoint two members for the Supreme Council of Defence and Security;
j) To appoint the President of the Supreme Court of Justice and swear in the President of the High Administrative, Tax and Audit Court;
k) To appoint the Prosecutor-General for a term of four years;
l) To appoint and dismiss the Deputy Prosecutor-General s in accordance with item 6, Section 133;
m) To appoint and dismiss, following proposal by the Government, the General Chief of Staff of the Defence Force, the Deputy General Chief of Staff of the Defence Force, and the Chiefs of Staff of the Defence Force, after consultation with the General Chief of Staff regarding the latter two cases;
n) To appoint five Members for the Council of State;
o) To appoint one member for the Superior Council for the Judiciary and for the Superior Council for the Public Prosecution.

Section 87 (Competencies with regard to International Relations)
Of no relevance for present purposes.

Section 88 (Promulgation and veto)
1. Within thirty days after receiving any statute from the National Parliament for the purpose of its promulgation as law, the President of the Republic shall either promulgate the statute or exercise the right of veto, in which case he or she, based on substantive grounds, shall send a message to the National Parliament requesting a new appraisal of the statute.
2. If, within ninety days, the National Parliament confirms its vote by an absolute majority of its Members in full exercise of their functions, the President of the Republic shall promulgate the statute within eight days after receiving it.
3. However, a majority of two-thirds of the Members present shall be required to ratify statutes on matters provided for in Section 95 where that majority exceeds an absolute majority of the Members in full exercise of their functions.
4. Within forty days after receiving any statute from the Government for the purpose of its promulgation as law, the President of the Republic shall either promulgate the instrument or exercise the right of veto by way of a written communication to the Government containing the reasons for the veto.

Section 106 (Appointment)
The Prime Minister shall be designated by the political party or alliance of political parties with parliamentary majority and shall be appointed by the President of the Republic, after consultation with the political parties sitting in the National Parliament.
2. The remaining members of the Government shall be appointed by the President of the Republic following proposal by the Prime Minister.

Section 107 (Responsibility of the Government)
The Government shall be accountable to the President of the Republic and to the National Parliament for conducting and executing the domestic and foreign policy in accordance with the Constitution and the law.

Observations
Is there anything at all above that would entitle the President to effectively veto not only legislation expressly under Article 88 but also to effectively veto the Prime Minister’s nominations under Article 106(2)?

Or is there in law a constitutional duty on the President to follow the nominations of Ministers of State (the Government)?

My view is that the first proposition is an absurdity and that the latter proposition is the correct one, indeed, the only one that is capable of justification.

That much is clear from the words of the Articles themselves, on the ordinary rules of construction.

Let us look more closely once again at part of Article 86 that touches upon Article 106(2):

“To appoint, swear in and remove Government Members from office, following a proposal by the Prime-Minister, in accordance with item 2, Section 106;”

Is it not also abundantly clear from the text that the exercise of all of these constitutional powers and almost all of the President’s other prerogatives, must all follow the proposal by the Prime Minister.

I can see no room for argument with the proposition that I have advanced since the day that Lu-Olo refused Taur Matan Ruak’s nomination of Ministers; which nomination may only be made by the PM and without any constitutional prerogative vested in the President to refuse the PM’s nominations under Article 106(2) or most of the other powers the President is vested with.

Conclusion
Consequently, it follows as a matter of logic, reason and jurisprudence that the actions of the President are prima facie unconstitutional.

The President has violated the Constitution.

The other organs of State, the Legislature and the Judiciary, should intervene and correct the unconstitutionality.


Warren L. Wright BA LLB

See further


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

East Timor: Whither Democracy?

Constitution of East Timor: President's Role in Civil Governance by Elected Legislature and Government

A note on "unconstructive and irresponsible commentary" on the Constitution of East Timor

On the President's Constitutional Powers on Nominations by Prime Minister of Ministers of State
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