29 July 2018

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

East Timor Law Justice Bulletin Article 106 Constitution of East Timor. President has acted contrary to the Constitution.
Elucidation of Article 106 of the Constitution of the Democratic Republic of East Timor (Part 2)

The East Timor Court of Appeal validated the results of the 2018 Parliamentary election. In delivering the Court's judgement, the country's most senior judge stated that:

"The collective of judges decides to judge valid the elections to the National Parliament held on May 12, 2018 and definitive results ascertained and are now proclaimed by the president of the Court of Appeal."

The National Parliament was then constituted by:
- 34 deputies from AMP,
- 23 deputies from the Independent East Timor Revolutionary Front,
- 5 from the Democratic Party (PD) and
- 3 from the Democratic Development Front (FDD), a coalition of several parties.

By any democratic standard, AMP has a clear constitutional mandate from the people though fair and free elections to govern. The people rejected the undemocratic minority regime of the former failed Fretilin government.

The Prime Minister then advanced nominations for Ministers to the President in accordance with Article 106. The President refused at least 10 nominated Ministers. This has created all sorts of governance problems even to the point where the public health is jeopardised and forced a transitional administration. [1]

The central question that these facts pose is whether the President has a discretion under Article 106 of the Constitution. [2]

Article 106 in its entirety reads:

Artigo 106.º (Nomeação)

1. O Primeiro-Ministro é indigitado pelo partido mais votado ou pela aliança de
partidos com maioria parlamentar e nomeado pelo Presidente da República, ouvidos
os partidos políticos representados no Parlamento Nacional.

2. Os restantes membros do Governo são nomeados pelo Presidente da República, sob
proposta do Primeiro-Ministro.

Google translate provides a sufficient English translation. This translation is taken from the Portuguese text of the Constitution published by government of East Timor.

Article 106 (Appointment)
1. The Prime Minister is nominated by the most voted party or by the alliance parties with a parliamentary majority and appointed by the President of the Republic, the political parties represented in the National Parliament.

2. The remaining members of the Government shall be appointed by the President upon the proposal of the Prime Minister.

The question turns on the construction of the words “upon proposal of the Prime Minister”. These are the only words of the Constitution that deal with this part of the democratic process of the appointment of the Government’s Ministers.

The first thing to notice is that it is not the role of the President to appoint the remaining members of Government of his own accord. That would be absurd because although the President is separately elected, the President does not command a majority in the Legislature; indeed has nothing to do with the Legislature since it is a sovereign organ of the State; the most supreme expression of the will of the people.

The core principle of the separation of powers is at least evident. It is the Prime Minister who has the power to nominate his Ministers and when it comes to the actual State administration, the constitutional mandate of the elections, to decide who shall be Ministers of the government. All of that is entirely consistent with a democratic interpretation of concepts and words.

What is even more evident from the ordinary meaning of the words of the provision is that the President may only appoint Ministers of the Government upon the nomination of the Prime Minister. Why does the Prime Minister in substance enjoy an unfettered power to nominate his Ministers?

There is nothing else in the constitution that limits his powers so to do. But what is more important is that it is the Prime Minister who is the real expression of the democratic process. This is so because he controls the Legislature and that entitles and empowers him to nominate Ministers.

From just a preliminary overview of these considerations, one is then compelled to the conclusion, both logically and jurisprudentially – constitutionally - that the President has no lawful power to refuse the Prime Minister’s nominations for Ministers.

It follows that the President has acted unconstitutionally.

The Heart of Responsible Government
It is instructive to refer to other democratic polities on this question. Under the Australian Constitution, for example, the chief of the Executive, the Governor-General, may, generally, only exercise his constitutional powers other than the reserve royal powers, upon instruction and direction from the Prime Minister.

As with Article 106 of the East Timorese Constitution, Australian Ministers are appointed by the Governor-General, on the advice of the Prime Minister.

The Prime Minister, having won a democratic mandate to govern, is perfectly entitled to nominate the remaining Ministers of the Crown and the Governor-General has no discretion to refuse. This is completely consistent with democratic principles.

Executive power is recognised in section 61 of the Constitution of the Commonwealth of Australia. It vests executive power in the Queen and permits its exercise by the Governor-General on the Queen’s behalf.

The Governor-General acts on advice of ministers in accordance with the principle of responsible government.

That principle is at the very heart of British and Australian constitutional arrangements.

It is one which requires the ‘Crown’ to act on the advice of ministers who are in turn members of, and responsible to, the parliament.

The formal differences between both the Australian and East Timorese constitutions; the one being parliamentary, the other being semi-presidential semi-parliamentary is not to the point and can not be raised as a rejection of the value of the comparison.

Both are directed to the constitution of a democratic state under the rule of law. Both are subject to jurisprudential interpretation accordingly.


[1] Eighth Constitutional Government Press Release Dili 25 June 2018 Transitional Ministerial Administration http://www.easttimorlawandjusticebulletin.com/2018/07/ighth-constitutional-government-press.html
[2] Constituição República Democrática de Timor-Leste  http://timor-leste.gov.tl/?cat=37

W. L. Wright BA LLB

See also
Article 106: Lost in Translation http://www.easttimorlawandjusticebulletin.com/2018/05/constitution-article-106-lost-in.html

Footnote: When examining the Constitution of East Timor, it is always worth being mindful that it was never put to a popular vote. The people were never permitted to see and approve or reject the text. The constitutional creation process was not a democratic process. Rather, it was an exercise in authoritarianism conducted under the auspices of the United Nations thoroughly dominated by Fretilin political ideology. Some of that ideology is most anti-democratic, for example Article 106, in so far as it apparently provides for a minority government - the very antithesis of democratic rule.

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