07 September 2018

East Timor President has no constitutional role in State Governance

Unconstitutional conduct by President Lu-Olo East Timor Law Justice Bulletin Warren Leslie Wright Lawyer
Supremacy of Parliament
Reiteration of Argument
I have previously argued that the behaviour of the President of East Timor, Lu-Olo, in relation to the appointment of Ministers of State, specifically, his recalcitrance and intransigence in refusing to appoint the Ministers of State put by the Prime Minister in accordance with Article 106(2) is unconstitutional.

The President has assumed to himself State powers with which he is not constitutionally vested. The result is unstable governance, uncertainty and political tension, unpredictable institutional operations and a generally antidemocratic stalemate that can only be resolved by the other organs of State, the Parliament and the Judiciary.

I have also previously argued that the President's problematical behaviour is a manifestation of an ideology; the political ideology of Fretilin that the Fretilin President is incapable of transcending in the interests of the people who have overwhelmingly rejected Fretilin at the election earlier this year and conferred an indisputable mandate on AMP to govern.

Finally, I have mentioned the possibility of constitutional reforms to take account of the impasses the present constitution has lead East Timor into since 20 May 2002. In particular, Article 106(1) is in need of substantial review and amendment to abolish the concept of minority government.

Hysterical Reactions

One East Timorese collective launched a ferocious public attack on me and my observations on these matters but this irresponsible and puerile organisation is unable to address the substantive juridical questions that I raised because they are incompetent so to do. In any event, I reject that criticism and maintain my course on all of these matters.

I have of late come upon another observation that supports my general argument that I wish to briefly mention here to show that my view is not a radical view, it is not an irresponsible view, it is not an unconstructive view.

It is, in fact, a view of substance that no one has refuted.

Rather, we find this re-affirmation.

The Role of the President
According to Remaking the State in Timor-Leste: The Case for Constitutional Reform, Dennis Shoesmith, of Charles Darwin University, writes:

"The presidency - Under the constitution, the presidency has limited powers (Shoesmith, 2007b). A key indicator of institutionalised presidential power in a semi-presidential system is the ability (or lack of it) of the president to influence the appointment of cabinet ministers.

The president does not have these powers in Timor-Leste.

Constitutionally, the president does not play a role in the actual government of the state"[1]

These views coincide and are motivated by consideration of democratic theory of polity construction and the creation, operation and nature of the State that exists by virtue of the Constitution.

Supremacy of Parliament
I think that it is worth noting also that while the President does have a right to veto legislation from the National Parliament, in the end, it is the Parliament that prevails.

Thus, Article Section 88 of the Constitution (Promulgation and veto) states in no uncertain terms as follows:

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.

Closing Observation
As I've noted elsewhere, the identification, analysis and conclusions about the law, including the basic law being the Constitution, including recommendations for reform, is the responsibility of jurists.

They are particularly equipped to undertake such exercises and the arguments are beyond reproach from an academic perspective until refuted by peers both theoretically and evidentially.

Jurists do not undertake this task irresponsibly. We take it with a sense of profound responsibility; as a duty particularly where we witness unconstitutionality and threats to the rule of law that threaten the civil peace.



Warren L. Wright BA LLB
Lawyer


[1] REMAKING THE STATE IN TIMOR-LESTE: THE CASE FOR CONSTITUTIONAL REFORM Dennis Shoesmith Charles Darwin University http://artsonline.monash.edu.au/mai/files/2012/07/dennisshoesmith.pdf
paper was presented to the 17th Biennial Conference of the Asian Studies Association of
Australia in Melbourne 1-3 July 2008. It has been peer reviewed via a double blind referee process and appears on the Conference Proceedings Website by the permission of the author who retains copyright. This paper may be downloaded for fair use under the Copyright Act (1954), its later amendments and other relevant legislation.
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