Legal opinion on the appointment of the Prime Minister and the formation of the Government in Timor-Leste
2007 ETLJ 4 Legal opinion on the appointment of the Prime Minister and the formation of the Government in Timor-Leste
Sahe Da Silva LLB (Hons) BBus & José Teixeira LLB BA
There appears to be some confusion amongst East Timorese politicians and international observers as to which political party can appoint the Prime Minister and form government. Some of this confusion arises from the inaccurate translation into English of the Portuguese text of the Constitution.
Here is our analysis of the Constitution (Portuguese version).
1. Section 106(1) of the Constitution states that “The Prime Minister shall be designated by the most voted political party or alliance of political parties with parliamentary majority and shall be appointed by the President of the Republic.”
FRETILIN will on current count be declared by CNE as the “most voted” political party.
This means that it is only FRETILIN that can appoint the Prime Minister as it is the most voted political party ie the party with the most seats in the National Parliament.
2. “Parliamentary majority” in section 106 does not refer to an “absolute majority” which is 50% plus one. There is a distinction between parliamentary majority and absolute majority in the Constitution. (“Absolute majority” is used in other sections of the Constitution, for example section 88(2) and section 109.)
If it was intended that the Constitution empower a coalition with the “absolute majority” in the National Parliament to form government, section 106(1) would have been worded along the following lines: “The Prime Minister shall be designated by the political party or alliance of political parties with ABSOLUTE majority and shall be appointed by the President of the Republic.”
3. The alliance of political parties refers to a pre-election and not post election alliance ie a coalition which is registered in accordance with the electoral law for these elections. Article 20 of the Law on the Election of the National Parliament Law no. 6/2006 states that:
Article 20
Party coalitions for electoral purposes
1. Once the election date has been scheduled, and within the subsequent twenty days, two or more political parties may form coalitions for electoral purposes with the objective of presenting one single list for the election of the National Parliament, in accordance with the contents of the following items.
2. For the purposes of the present law, the formation of party coalitions (party coalitions) for electoral purposes shall observe the provisions of the law governing the political parties and shall be immediately communicated to the national electoral commission (CNE) with an indication of the respective denomination, abbreviation, flag and symbol.
3. The information referred to in item 2 above shall be communicated by CNE to STAE, which will immediately announce it through a notice published on the Official Gazette.
In parliamentary elections the people do not vote for a coalition that has yet to come into existence; they vote for the policy platform and electoral promises of a defined alliance of parties or a particular political party. In the last election there were only two distinct and separate alliances, PSD/ASDT and KOTA/PPT.
The rationale is that the mandate to appoint the PM has to be given to the political party or pre-election alliance of parties which has received the “most votes” in the parliamentary elections.
4. The reason the term “parliamentary majority” is used in section 106 in relation to an alliance of political parties as opposed to the “most voted” alliance is to avoid confusion as to who is able to appoint the Prime Minister. For example, with the current election results the most voted alliance would be PSD/ASDT, but it is clear that they do not have the mandate to appoint the Prime Minister.
5. FRETILIN will need to give concessions to other parties in the form of positions in the government to enable its programme for national development and budget to pass through parliament. There may also be concessions made in the programme and budget in order to gain the necessary support to pass the programme and budget.
The Constitution sets out a two step process for a political party to gain the confidence of the National Parliament to pass its programme and budget. The first step is the election to determine the most voted political party (or in the case of an alliance, the alliance with the parliamentary majority) and the second step is the passing of the programme and budget by an absolute majority in the National Parliament under section 109.
The real test of the strength of the Government is whether it can gather the support to pass its budget and programme by absolute majority in the National Parliament.
6. There is no provision in the Constitution which says that a post election coalition with an absolute majority in the National Parliament has the right to form government. However, a post election coalition with an absolute majority gives the coalition parties leverage to pass laws in the National Parliament and establish the legal framework under which the government is required to operate.
The National Parliament acts as a check on the excesses of the executive and this is consistent with the separation of powers enshrined in the Constitution of Timor-Leste.
Most Australian commentators don't seem to have ever picked up on the clear separation of powers in the Constitution of Timor-Leste. This is due to the distinct Westminster system of government which provides the basis of government, parliament and judiciary to function in the UK, Australia and other common law countries and under which there is no clear separation between the Parliament and the Government (for example, in Australia government members sit in the National Parliament). Under the Westminster system, the judiciary is the only truly independent institution.
7. There is no inconsistency between article 106(1) and article 85(d) of the Constitution by the mere fact that article 85(d) does not refer to the “most voted” party.
It is article 106(1) and not article 85(d) which empowers a political party with the “most votes” (or in the case of an alliance, the alliance with the parliamentary majority) to designate the Prime Minister. Article 85(d) sets out the competency of the President once the PM is designated under article 106(1).
Authors: Sahe Da Silva Bachelor of Law (Honours) and Bachelor of Business (Accounting) from the University of Technology, Sydney & José Teixeira Bachelor of Law from the University of Queensland (St. Lucia), Bachelor of Arts (Politics and Economic History) from the University of New England
Published in the East Timor Law Journal on 11 July 2007
See further on ETLJB
The Unconstitutional, Irrational and Damaging Decision by President Jose Ramos Horta: A legal opinion on the Formation of an Unconstitutional Government in Timor-Leste
Constitutional Crisis Possible as East Timor's Government strengthens security after Parliament rejects Government Program
No comments:
Post a Comment