Of guns and constitutions

                   

Hail to the Chief?

There are garbled reports of a stand-off for control of East Timorese military forces between President Xanana Gusmao and Prime Minister Mari Alkatiri.   It’s suggested that Xanana has taken full control of all military forces but that Alkatiri is disputing it.   For example, The Guardian reports:

The popular but relatively powerless president, Xanana Gusmao, and the much less popular prime minister, Mari Alkatiri, had a row over control of the security forces, according to diplomats. Mr Gusmao was said to have taken control of the military but reports that he had dissolved parliament could not be confirmed.

Update (Saturday morning)  – this morning’s SMH confirms these stories:

Last night it was unclear who was in control of the military: the Prime Minister, Mari Alkatiri, rejected Mr Gusmao’s announcement he was assuming “all control” of the country’s security forces, claiming the move was unconstitutional.

It’s both a worrying and a hopeful sign.   There would be far greater prospects of negotiating a peaceful settlement with rebel military and police with Xanana in clear charge.   Alkatiri is very unpopular with much of the population but especially with rebel forces, as yesterday’s interview with rebel leader Major Alfredo Alves Reinaldo (who contemptuously referred to Alkatiri as a “communist”) starkly demonstrated.

One wonders too  about the role if any of  the notoriously authoritarian but inept Alkatiri in the slaughter of at least 9 surrendering rebel police yesterday by government military forces.   Is that what ultimately prompted Xanana to seize control?   And what of the deaths by incineration of an entire family in their own home at Delta-Comoro near Dili airport.   It’s being suggested that they were family of Interior Minister Rogerio Lobato, one of Alkatiri’s potential parliamentary rivals for power.   Could it be that Alkatiri, who seems convinced that this is really an organised coup against him, had decided to stop at nothing to retain control?   Frankly I seriously doubt Alkatiri sanctioned either action, but he may  conceivably have tacitly encouraged violence in general terms by forces loyal to him as a means of retaining power by intimidation.   At the very least he has totally lost effective  control of forces nominally loyal to him, making peace all the harder to achieve if rebels can’t even surrender safely  for fear of being gunned down.   This report from last week is looking increasingly prescient:

East Timor’s Prime Minister Mari Alkatiri avoided a leadership challenge this week but it is doubtful his rule will ensure any peace in the world’s youngest nation. …

“People are still in a traumatising situation because there are rumours that some political leaders deploy arms to parts of the population… the rumours create confusion,” said Father Martinho da Silva Gusmao from the Catholic Church’s peace and justice commission.   …

As rumours swirled around the capital, many said they believed the whisperings could be part of a political struggle. “In this government there are some people who want to create instability, who want to gain power. They might want to make Mari (Alkatiri) look weak,” said Mr da Silva Gusmao. …

Others think the rumours could have been fed to the police by interior minister Rogerio Lobato, who is generally viewed as a trouble-maker. He served a five-year jail term in Angola for smuggling diamonds. Mr Alkatiri blamed the unrest on groups trying to oust him, labelling it a “constitutional coup”.   …

Personally, I think it’s critical for restoring peace that Alkatiri be at least persuaded to cede power over the military to President Gusmao, and Alexander Downer should be bringing his powers of persuasion to bear to achieve that result.   I don’t agree with Mark Bahnisch that this would be unacceptable interference in East Timor’s affairs.   However, I’m less enamoured of the prospect of Alkatiri being deposed as PM, because most of the parliamentary alternatives (particularly Lobato) would be likely to be even more corrupt and inept.

Fortunately, there’s a respectable case in constitutional law that the President actually  has the power to control the military in any event.   For a start, section 74 of the Timor Leste Constitution designates the President as Commander in Chief of the Defence Force.   Then again, section 68 of Australia’s Constitution designates the Governor-General as Commander in Chief of Australia’s military too, but that doesn’t mean he actually has any real power.   However, that’s because of the conventions of responsible government inherent in the Westminster system Australia inherited and adopted on federation.   It’s much less clear that those constitutional assumptions are applicable in East Timor, whose legal and constitutional heritage derives from European civil law.

There are also textual indications that the President’s role as military Commander in Chief was intended to be more than merely ceremonial.   Section 85 of the Timor Leste Constitution amplifies section 74 and appears to evince an intention to confer specific powers of control over the military rather than just a ceremonial role:

Section 85
(Competencies)
It is exclusively incumbent upon the President of the Republic:
….
b) Exercise competencies inherent in the functions of Supreme Commander of the Defence Force; …

There is no corresponding section in Australia’s Constitution.   Moreover, some other provisions concerning the President’s competencies (e.g. declaration of war) expressly require him to consult with or act on the advice of Parliament, but section 85(b) contains no such stipulation.

On the other hand, section 86(m) allows the President 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.”

A plausible interpretation is that the President can exercise day-to-day control over the military but cannot make really major decisions like  declaring war or appointing or dismissing defence force military heads without parliamentary sanction.

My CDU adjunct colleague Graham Nicholson foreshadowed just this problem with the Timor Leste Constitution in an article in the Alternative Law Journal in 2002:

While it seems clear that the new Constitution of East Timor falls well short of the USA “Presidential” model of government, it does seem to leave some scope for the exercise of real political power  and influence by the President.   The degree of that power  and influence is dependent in part at least on the strength of character and political skill of the incumbent.   It is  not at all  clear that the conventions of the Westminster system, which dictate that the head of state must act in accordance with the advice of their respective ministers in the Parliament (except in the case of the very narrow uncontroversial “reserve” powers), would come into play in East Timor.   The head of state in the Westminster model is of course not normally directly elected by the people, but holds office directly or indirectly according to the wishes of the Prime Minister.   If the President of East Timor is found in practice to exercise real power  and influence, then the potential for tension  and conflict with the Prime Minister cannot be discounted, particularly if they represent different political persuasions.

Of course, the contest between President and Prime Minister will mostly be fought out in the arena of realpolitik rather than rarefied constitutional discourse, but the constitutional aspects are nevertheless at least worth  noting.   They would certainly provide respectable legal cover for Australian efforts to pressure Alkatiri to cede control of the military to Xanana, which would greatly assist Australian forces to restore law and order without further bloodshed (including Australian bloodshed, which I suspect is a significantly greater possibility  than many appreciate).

Moreover, neither the President nor PM have distinguished themselves in the recent stages of their longstanding rivalry.   As the report quoted above observes:

Another power struggle is taking place between leading freedom fighters, he said. Mr Taur Matan Ruak, the head of the armed forces, has reportedly fallen out with President Xanana Gusmao, the one-time leader of the guerilla forces, over the President’s refusal to pursue the issue of human rights abuses by the Indonesian military during their brutal rule.

“Xanana has left behind the friends, the companions that he had during the war for 24 years, by being conciliatory to Indonesia,” said Mr da Silva Gusmao.

Mr Xanana and Mr Alkatiri say that East Timor cannot hold the Indonesians accountable for these abuses. This is deeply unpopular among the East Timorese who, unlike Mr Alkatiri, endured more than two decades of military rule. …

Somewhat ironically given that Xanana was the hero of the resistance and leader of Falantil guerillas until his capture by the Indonesians, some suggest that Alkatiri has privately (with receptive ex-Falantil elements of the military)  been distancing himself from the government’s stance of rapprochement with Indonesia, taking advantage of the fact that Xanana as President is necessarily the public face of that rapprochement in dealing with Indonesia.

At the same time, Xanana has been oscillating between backing the government’s tough line against the rebel soldiers (who are mostly from the West of East Timor  and  have links to Indonesian West Timor and in some cases the former Indonesian-backed militias themselves)  and privately expressing sympathy for them.  

The inevitable result of all this expedient jostling for advantage has been drastic  division and instability in the military.   The main reason, of course, is the personalities of the protagonists: on the one hand a national hero President who wants to be loved but isn’t much interested in the day-to-day tedium of practical governance; and on the other an unpopular and fairly incompetent Prime Minister with at the very least  a high tolerance for corruption in his close cronies.   But arguably  an important underlying factor is  a poorly drafted Constitution, which fails to make clear exactly where executive power lies in key areas,  and which  has provided the breeding ground for this poisonous and destructive situation.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Scott Wickstein
Scott Wickstein(@scott-wickstein)
15 years ago

This is exactly the sort of imbroglio that the Jakarta lobby warned us off. The Oz today reprinted some of Richard Woolcott’s preachings from his auto-biography along these lines.

Be that as it may, and I do agree that Australian blood may well be spilled, I still think it’s a lot better for East Timor to have a chance to sort out these matters while Australian troops hold the ring. When Indonesia ran Timor, things were rather more gruesome.

I must admit I’m a bit dismayed by your view that Alkatiri is the best that East Timor can come up with as a PM. I don’t know much of the ins and outs but surely Ramos-Horta couldn’t be worse?

Mark Bahnisch
15 years ago

I don’t agree with Mark Bahnisch that this would be unacceptable interference in East Timor’s affairs

Ken, I think you’re placing too strong a construction on my comment. I certainly have no objection to negotiations which might lead to peace. What I was concerned about was whether Canberra had an agenda of its own.

Rob
Rob
15 years ago

East Timor’s finding out the hard way that independence is no bed of roses.

ET has for years now shown signs of systemic instability and corruption.

Its basic problem is that it is a non-viable nation state. Half a small island – plus the Oecussi enclave – bang in the middle of the Indonesian archipelago, clinging to its colonial past, led by people like Alktiri who spent the years of occupation in Mozambique (another ex-Portuguese colony and basket case). (I agree Ramos Horta is an exception.)

East Timor should have been part of Indonesia since its post-war inception as a nation. Many thanks to the Portuguese, who refused to return their colonies when the Dutch did.INot until the ovethrow of the fascist regime in Lisbon did they change their minds – and then disengaged fromtheir colonies with indecent haste, forgetting that, as the Europe’s worst colonisers, they had not nurtured an educated middle class capable of taking over when they pulled out.

Hard reality: East Timor will be a perpetual beggar state, inherently broken-backed and dependent on Australia. Did we really do such a good deed bringing them on to independence? I wonder.

Gary
15 years ago

“What I was concerned about was whether Canberra had an agenda of its own.”

Well I hope so after all who do they represent?