East Timor speculation

What is Timor Leste President Xanana Gusmao up to in threatening to resign? Is it just a spur of the moment emotional outburst, behaviour for which the President has been known in the past? Or is there a greater element of strategic calculation involved?

If Gusmao does in fact resign that would be among the worst possible outcomes. Under Constitution section 82 the Speaker of Parliament Francisco “Lu Olo” Gutteres (a close Alkatiri supporter) would then take over as interim president, and a presidential election would have to be held within 90 days. This section also provides that a President who has resigned may not stand in the subsequent election and is disbarred from re-election as president for 5 years. Moreover, Gusmao’s resignation would very likely provoke large-scale civil disorder that Australian and international troops would struggle to control.

Hopefully this is just a bluff to give Fretilin a final push to depose Alkatiri as its nominated prime minister.   (Update – whatever it was, it now looks like Gusmao has rethought his position).   It’s been suggested that there might be another Fretilin party meeting on Saturday, which could sack Alkatiri, so it would be most unwise for Gusmao to resign in advance of that. He should give Fretilin a little more room to manoeuvre. That would also give the police and independent prosecutor’s office more time to interrogate arrested former Interior Minister Rogerio Lobato to see whether they can extract admissions or evidence from him that would more clearly implicate Alkatiri in the illegal arming of civilian militias, thus allowing him to be charged with a criminal offence.

In that situation the Constitution provides that Akatiri is suspended from office until the charges are determined.

However, what if the situation worsens, Alkatiri still won’t resign and Fretilin won’t sack him, and the independent prosecutor (or Four Corners) uncovers more evidence implicating him but not enough to charge him? Could the President then effectively dismiss the government and call immediate elections, especially given that neither the Parliament nor PM has ever been elected as such)?

Gusmao might conceivably invoke the constitutional doctrine of ‘necessity’, an underlying principle recognised and applied in the past by the courts of numerous countries. It holds that in times of extreme crisis, emergency action can be taken that would otherwise be illegal. It normally justifies measures like martial law, which is already provided for under the Timor Leste Constitution. However in a sufficiently extreme situation of severe civil unrest and a government refusing to resign despite clear  if inconclusive evidence of serious illegal conduct by the Prime Minister, the doctrine of necessity might justify dismissal of the government and calling of immediate parliamentary elections.

The constitutional doctrine of ‘effectiveness’, examined by the Fiji Court of Appeal in the wake of the Speight coup in 1999, might then legitimise a new government elected by that means.   Here’s an extract from the Court of Appeal’s summary that discusses both concepts in the Fijian factual context:

We are satisfied that we have such jurisdiction ¹, and proceed to a consideration of the constitutional doctrine of necessity, which can give validity to otherwise unconstitutional action taken in the interest of public safety. We agree with Gates J that this doctrine could not justify the abrogation of the Constitution, nor validate the Interim Civilian Government. However, he failed to consider the possibility that the government could have acquired legality by exercising control over the State with the acquiescence of the people. We consider court decisions and academic writings which confirm that a usurping government may be recognised as legal in this way, and formulate a test of the kind of acquiescence necessary under Fiji conditions.

The Interim Civilian Government has the burden of proving that it is in firm control and that the people have truly acquiesced in it. There is no question about control, but there was no direct evidence of acquiescence produced by the Government, and the court was left to infer this from affidavits by officials indicating that all branches of government were proceeding normally, and citizens were acting in conformity with its requirements. We do not accept such passive acceptance as persuasive evidence of acquiescence, having regard to the short time the government has been in control and its suppression of public demonstrations of dissent, evidenced in the material produced by Mr Prasad. We also refer to the numerous affidavits by people and organisations expressing disapproval of the present regime, and to the fact that the elected government is said to be ready to take over and is awaiting the outcome of this appeal.

We conclude that the interim civilian government has not proved it has the acquiescence generally of the people of Fiji. Accordingly it cannot be recognised as the legal government.

In the current East Timorese context, calling immediate elections should satisfy the ‘popular acquiescence’  requirement for any new government. This strategy might be a workable option if Gusmao and Defence and Foreign Minister Jose Ramos Horta had the tacit backing of Australia for such a desperate expedient. However, who knows what the UN would do in such a situation? Would it agree to supervise elections? Or would the UN insist on reinstatement of the lawful (if unelected) government?

And what would the Supreme Court do? Would it emulate the Fiji Court of Appeal and declare the new government illegal? The Timor Leste judiciary includes some Mozambican judges effectively on loan from that country given that the new nation does not yet have a significant cadre of sufficiently trained and experienced lawyers. Given Mozambique’s essentially Marxist regime, one might speculate that at least some judges could be inclined to adopt constitutional interpretations that favoured Fretilin.   Indeed even conservative judges could be expected to think very carefully before accepting the necessity/effectiveness/acquiscence line of argument (the latter part of which is associated with Austrian jurisprudential scholar Hans Kelsen).   It is only likely to find judicial favour in very exceptional circumstances.   As the Fiji Court of Appeal remarked, unless such a doctrine is treated with extreme caution it can “too readily reward a usurper”. (American legal blogger Jonathon Edelstein expands on  Kelsen’s doctrine in this post about the current situation in Nepal following its parliament’s recent  stripping the king of his constitutional powers).    

There are far too many imponderable factors involved in such a strategy, although there’s little doubt that Gusmao and Horta would have considered it. The best hope is for President Gusmao to remain patient, hoping that the independent prosecutor gets enough evidence on Alkatiri to charge him so that he can be suspended from office constitutionally. In fact, a report in this morning’s Age newspaper suggests that Lobato has already implicated Alkatiri in a closed hearing yesterday before international judge Sandra Sylvestre from Brazil. If that is the case, it may well be that the prosecutor now has enough evidence to charge Alkatiri, which would then trigger the constitutional suspension provisions.

1. KP: – to adjudicate on the constitutionality of a new post-revolutionary regime[↩]