Of guns and constitutions (2)

   

PM Alkatiri (right) and National Parliament Speaker Francisco “Lu Olo” Gutteres at the recent Fretilin Party Congress which confirmed Alkatiri’s leadership

Further to my previous post, it appears that Australia is exerting significant and fairly open pressure to persuade East Timor’s unpopular Prime Minister Mari Alkatiri to step down.   The Australian reports this morning:

On the weekend, former guerilla commander turned president Xanana Gusmao was formally asked to take a more hands-on approach to matters of state, particularly in matters of defence and national security.

It sparked an angry response from the Prime Minister and a thinly veiled warning to President Gusmao – he and Alkatiri cannot stand each other – expressing confidence that he would not “cease to respect the constitution”, which is diplomatic speak for “be careful about moving into my patch”.

Meanwhile, ABC News is now reporting:

Prime Minister Mari Alkatiri is facing growing demands that he step down and allow President Xanana Gusmao to appoint a government of national unity, to try to reassert government authority and drag the country out of its current crisis.

It is believed that President Gusmao’s supporters, including Foreign Minister Jose Ramos Horta, have been examining the constitution to see if it is possible to dismiss the Prime Minister.

I think I can save them the trouble.   It isn’t.   As I commented previously, there’s a respectable argument under the Timor Leste Constitution that the President can assume day-to-day control of the East Timor armed forces without the Prime Minister’s consent.   He can also declare a state of emergency, although only with the authorisation of Parliament (section 85(g)).   Some reports suggest that the President has declared a state of emergency,  though whether either Parliament or the Prime Minister have authorised it is unclear.     However, the only relevant  express powers the President has to dismiss the government or Prime Minister are found in section  86 (f) and (g):

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.

None of the preconditions listed in either sub-section currently exist.   Otherwise the Prime Minister’s position is governed by section 106(1) which provides:

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.

It’s fairly clear that, in the absence of the conditions listed in section 86(f) or (g),  Alkatiri cannot constitutionally be forced from office by the President  as long as he remains the parliamentary leader designated by Fretilin, which has the overwhelming majority of seats in Parliament.   Dislodging a determined Alkatiri will probably require number-crunching within Fretilin (which clearly can’t be done by the Australian government, either ethically or practically), unless Alkatiri can be made an offer he can’t refuse.

Update – This morning’s report in the SMH indicates that the Timorese leadership may be moving towards a somewhat more limited Ministry “reshuffle” that leaves Alkatiri in place as PM.   That would certainly reflect the constitutional difficulties  I see with the President dismissing a PM who doesn’t want to go.   On the other hand, this story clearly represents the Alkatiri forces’ spin on the situation, and doesn’t necessarily mean that Gusmao, Horta et al have given up their efforts to prise Alkatiri out of the top job.   Fretilin (not just Alkatiri)  would certainly be very reluctant to embrace a “government of national unity” option, given the loss of ministries and attendant power and patronage that would involve, if there was any choice.

On the other hand, it might be possible for Gusmao and Horta  to construct an argument that the President has implied powers of dismissal in addition to the limited express ones in Constitution section 86.   For instance, to dismiss a PM who refuses to resign after losing an election or after losing the confidence of Parliament following defections from ranks of the governing party.   Some such powers arguably need to be implied to give force and  effect to express provisions such as those governing parliamentary terms and elections, and the requirement in section 106 that the President appoint as PM the leader of the majority party in Parliament.   It would, however, be a rather large step from there to positing an implied power to dismiss a PM  because of  chaos and complete loss of control of governance, when that PM still  retained a strong  Parliamentary majority.   Shades of the Whitlam dismissal.  

That sort of ill-defined “reserve power” would make the role of President an extraordinarily powerful one and could arguably destabilise Timor Leste’s constitutional system over the long term.   Moreover, it would be doubtful whether the country’s Supreme Court would hold any such dismissal to be constitutional anyway (although the extent to which the Court has yet developed a culture of robust independence and intellectual rigor – given that the country lacked a significant class of trained and experienced lawyers prior to independence – is uncertain).  

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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Alan
Alan
15 years ago

East Timor has, I agree, a very badly-drafted constitution. I understand it was written to punish Xanana Gusm