Immunity for Alkatiri on “death squads” claims?

I must confess I’ve been somewhat baffled by Fretilin claims over the last few days that former Prime Minister Mari Alkatiri enjoys an immunity from prosecution as a parliamentarian.   There certainly isn’t any such immunity in the Timor Leste Constitution.   The only  relevant provision is section 94(1) which has a much narrower field of operation:

The Members of National Parliament shall not be held liable for civil, criminal or disciplinary proceedings in regard to votes and opinions expressed by them while performing their functions.

Alleged involvement in a conspiracy to arm civilian militias to murder political opponents rather clearly does not fall within that immunity.   However a news story this morning reports Parliamentary Speaker Francisco “Lu Olo”  Guterres as claiming that the alleged immunity is conferred not by the Constitution but by “parliamentary regulations”.

I don’t have instant access to East Timorese parliamentary regulations, which makes it rather difficult to form a definitive evaluation of  the claims of Alkatiri and Gutteres.   However, and assuming for the sake of the argument that  the regulations  do purport to provide immunity as asserted, there is at the very least a respectable argument that any such regulation would be unconstitutional.   Not only is the constitutionally-conferred immunity for MPs expressed in much narrower terms, but the very first provision of the Constitution’s bill of rights, section 16(1), provides:

All citizens are equal before the law, shall exercise the same rights and shall be subject to the same duties.

If that fundamental expression of the rule of law principle has any meaning at all, it must surely prohibit parliamentarians from legislating to exempt themselves from the provisions of the ordinary  criminal law, most especially in relation to conspiracies to murder political opponents.   In fact you don’t even need a bill of rights provision to conclude that no Parliament under any democratic constitution could possibly  be held to enjoy the power to exempt its own members from criminal liability for involvement in plotting the murder of political opponents.

You would have to wonder why mainstream media coverage of the Timor situation so far hasn’t focused on the appalling absurdity of Alkatiri’s claim to immunity from prosecution.

At the same time, though on a rather less frighteningly farcical level, implicit  assertions earlier this week  by Jose Ramos Horta and others, to the effect  that President Xanana Gusmao enjoys the power to make his own decision on appointment of a new Prime Minister to replace Alkatiri, are also in need of sceptical analysis against the actual text of the Constitution.   Section 106(1) is tolerably clear about the President’s role in this situation.   It is essentially identical to that of the Australian Governor-General, that is he is under a clear obligation to appoint the leader of the party with a majority of seats in the unicameral Parliament:

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.

While the President no doubt has the power to appoint  Ramos Horta in an interim capacity while Fretilin decides on its replacement for Alkatiri, and may well have a residual power to “advise and warn” the majority party about the wisdom or otherwise of its choice, Gusmao will ultimately have no constitutional  alternative but to accept  Fretilin’s choice.   In fact if he pushes his present strong political bargaining position too far, the Fretilin-dominated Parilament could even impeach the President under Constitution section 79:

1. The President of the Republic shall enjoy immunity in the exercise of his or her functions.
2. The President of the Republic shall be answerable before the Supreme Court of Justice for crimes committed in the exercise of his or her functions and for clear and serious violation of his or her constitutional obligations.
3. It is the incumbent upon the National Parliament to initiate the criminal proceedings, following a proposal made by one-fifth, and deliberation approved by a two-third majority, of its Members.
4. The Plenary of the Supreme Court of Justice shall issue a judgment within a maximum of 30 days.
5. Conviction shall result in forfeiture of office and disqualification from re-election.
6. For crimes not committed in the exercise of his or her functions, the President of the Republic shall also be answerable before the Supreme Court of Justice, and forfeiture of office shall only occur in case of sentence to prison. …

Refusing to appoint the majority party’s prime ministerial nominee  almost certainly  would be classed by the Supreme Court (which is yet to hear or determine any constitutional matter at all)  as a serious violation of constitutional obligations.   However, not only is the section less than clear as to the power of Parliament to impeach for consitutional breaches (as opposed to commission of crimes), but it’s very unlikely that Fretilin would take such a drastic step against a national hero President if it saw itself as having any political choice.   Nevertheless, the party’s loss of  the centrally powerful office of prime minister probably would be seen by  Fretilin as a matter of political life or death.   That’s probably why Horta seems to have backed off in his latest utterance and accepted that the President will ultimately appoint Fretilin’s nominee once chosen, after earlier suggesting that the President would confer  but then make his own choice.  

Incidentally, section 79 also impacts the probable fate of Alkatiri’s claim to immunity for commission of serious crimes while in office.   It seems most unlikely that any Supreme Court bench with even  a modicum of judicial integrity would interpet the Constitution as permitting such a legislated immunity for the Prime Minister and other parliamentarians when that same Constitution holds the President expressly liable for all crimes he commits while in office!

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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