Timor-Leste: the shadow theatre and the powers of the President

President Francisco Guterres “Lu Olo” was the first to be elected on a partisan platform after the country had experienced three presidents who presented themselves as “independent”. Soon after the presidential election of 20 March 2017, parliamentary elections were held in July, but the president’s party, FRETILIN, obtained no more than a plurality of the vote and was unable to obtain a parliamentary basis to secure full investiture after the appointment of its leader to the post of Prime Minister. President Lu Olo responded to the vote of non-confidence in his party’s government by dissolving the assembly. The parties that had shown opposition to FRETILIN ran as a coalition which secured the necessary majority in the new parliament (May 2018). President Lu Olo accepted to appoint a representative of the winning coalition to the post of Prime Minister, inaugurating the first full fledged cohabitation in the history of the country. The course of the last year has shown that institutional life in Timor-Leste can be significantly different from real political disputes, and a sort of shadow theatre has emerged and seems to be set to persist, as will be shown in the first section of this post. In the meantime, questions about the nature and the limits of presidential powers have been brought to the fore, and these will be considered in the second part.

The first clash between rival politicians occurred when Taur Matan Ruak, the appointed Prime Minister, proposed his list of government members. Out of a total of 42 ministers, vice-ministers and secretaries of state (the three grades in the governmental hierarchy), President Lu Olo vetoed 12. One case was merely bureaucratic, and the question was solved within a week. Two others were replaced by the Prime Minister, and the new names were accepted by the President. Nine others, however, were not replaced nor accepted. President Lu Olo claims that the Constitution of the Democratic Republic of Timor-Leste grants him the power to act in this way, which is an understanding of the presidential competences espoused by previous presidents who acted in the same way, blocking appointments to the government. Both José Ramos-Horta (2007-2012) and Taur Matan Ruak (2012-2017) publicly rejected names presented by prime ministers. In this occasion, the names in question were rejected by President Lu Olo on the basis of an alleged “lack of moral integrity” and more specifically, suspicions as to their involvement in corruption cases. If the former argument is elusive and difficult to oppose, the latter is institutionally linked to the activity of the judicial system. None of the nine vetoed ministers was at the time, or has since been brought under formal investigation – and thus the presidential initiative may be considered as an act that denies them presumption of innocence. Be it as it may, the presidential decision has been taken and politically criticised, but institutionally it remains in force, and reveals the extent to which presidents can actually use their powers. The response from the Prime Minister has been to insist on their appointment, refusing to propose other names.

These would be ministers were supposed to take important government portfolios, such as Finance, Natural Resources, Health and Internal Security. All of them belong to one of the parties supporting the government – Xanana Gusmão’s CNRT – which is the largest in the coalition. This party has two senior ministers, one serving as foreign secretary, the other as “Minister of the Presidency of the Council of Ministers”, effectively taking the institutional functions of all 9 ministers. Simultaneously, those nine individuals are serving as “advisors” to the ministries which they were supposed to lead (popular voices saying they have larger salaries than would otherwise be the case). Officially, they are not entitled to take part in decision making, and do not attend cabinet meetings. All this instills the feeling among the population that there is a widening gap between institutions and real policy making. The economic atmosphere has also been sensitive to the difficulties faced by a government without key ministers, and several important investments have been put on hold. People on the street complain that government is running late on payments of different kinds, and there seems to be good reason to believe they are right.

The rationale for this attitude resides in two combined sections of the Constitution. First, section 86 h stipulates that the President shall “nominate, swear in and remove the members of government following a proposal from the Prime Minister”. Section 106.2 further stresses that the Prime Minister has the competence to propose ministers to the President (who cannot appoint any minister without the agreement of the Prime Minister), but the President retains the capacity to judge the suitability of the proposal and is not compelled to accept it. Second, section 107 stipulates that “the Government responds before the President of the Republic and the National Parliament for the conduction and execution of the internal and external policy of the country”. This section has been widely commented by different scholars who often cite a distinction between “institutional” and “political” responsibility. However, it is a fact that successive presidents have interpreted this section as defining a principle of double dependence, and found no reason to distinguish between the two kinds of responsibility. They have not been challenged in their views. Presidents tend to interpret this double responsibility as a way of granting them more than the powers of a notary who would be limited to the technicalities and formalities of the political process. In this light, there seems to be no way out of a presidential veto on the name of would be minister despite the fact that he may have the support of the Prime Minister and presumably that of the parliament.

The second aspect of the tug-of-war between the President and the Prime Minister refers to the veto powers of the head of state. In December 2018, President Lu Olo vetoed the State Budget approved by the National Parliament, and immediately a question emerged: how to overcome his veto? After some preliminary debate, the National Parliament bowed to the President’s remarks in the address he sent the deputies, and accepted to modify the Budget so as to please the President, who then promulgated it. It was a sound victory to the President. But the question remains: how can Parliament overrule the President in the case of the State Budget?

The Constitution grants presidents the competence to veto laws and decree-laws (Section 88). The latter cannot be overrun, the former can. The general rule is that an absolute majority of MPs can overrun a presidential veto, but there are exceptions: those that refer to matters contained in section 95. This is a section that establishes a general principle – the National Parliament legislates on the basic elements of national and international policy – and a more precise one: according to section 92.2., there are some areas in which the National Parliament is the sole organ with capacity to intervene (i.e., these cannot be delegated). The catalogue of these areas is substantial, and point q states that “the budget system” is included.

For matters falling into the catalogue of section 95.2., an absolute majority is not sufficient to overrule a presidential veto. It requires a qualified majority of two thirds of MPs (section 88.3). The question then is: is one State Budget something to be considered under the provisions for the “budget system”? In a very thoroughly argued comment on the Timorese Constitution, Pedro Bacelar de Vasconcelos considers that section 95.2.q. refers to “budgetary matters”, thus seemingly inclined to offer a broad interpretation of this precise item.

This is consequential to the workings of the political system, and to ascertain the role of the President of the Republic. If one assumes that the President’s veto on a State Budget can only be overrun by a two-thirds majority, then his power is significantly increased in relation to what has been more commonly – but not universally – accepted as the limited boundaries of his competences. Faced with a veto on a budget, the National Parliament and the political majority would face an alternative (as happened early this year): either to accept the President’s views and modify the most critical element of governance, or to challenge it and risk a prolonged stalemate until some entity takes a decision on the legality of the President’s interpretation of the law . This latter course of action is problematic. In fact, the Supreme Court of Justice has the power “to review and declare the unconstitutionality and illegality of normative and legislative bills by the organs of the State” (Section 126.1.a), and this might be an avenue to explore. However, Pedro Bacelar de Vasconcelos restricts this power to the laws of National Parliament and Decree-Laws of the Government – excluding presidential initiatives and actions from the scope of this norm.

Both in the case of the ministers he refuses to swear in and in the case of the effects of a presidential veto on the State Budget, Lu Olo has been testing the limits of presidential powers. So far, he has not been challenged in any institutional manner. The image these episodes project is one of significant powers in the hands of the President of the Republic, competences that he is using to assert his position in the centre of the political system and defying those who insist on granting him no more than cerimonial, institutional functions. The President of the Republic in Timor-Leste is a first rate political figure

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