After the early elections of last May, a period of formal cohabitation was initiated between the first partisan president (Fretilin’s chairman, Lu Olo) and a government supported by the winning coalition (Xanana’s CNRT, Taur Matan Ruak’s PLP and KHUNTO), which has an absolute majority in the House, but not of a two-thirds super majority.
The president appointed Taur Matan Ruak as prime minister in June and, according to the constitution, the prime minister submitted his proposal of 42 government members. Lu Olo initially objected to 12 of those members. One case was solved by bureaucratic means, as the presidential objections related to the need to clear the proposed minister’s earlier position as deputy chief of the armed forces; two were also sidestepped when the candidates were replaced by names acceptable to the president; but as for nine others, neither the president nor the prime minister has shown signs of changing positions. Three other suggested ministers refused to be sworn in in solidarity with their vetoed colleagues, one of them (Xanana Gusmão) indicating that he preferred to stay out of government for good. At the time of writing, almost three months have elapsed and the government still has no minister for finance, health or natural resources, and is thus in a formally weak position to discharge its functions. Nonetheless, in this period, the government was still able to present some critical documents including the state budget for the current year (which had not been possible to pass due to the political crisis of 2017 that eventually led to the early elections). As things stand, no clear sign is discernible as to the solution for the impasse. It seems that formal institutions are suffering the challenge of a kind of a shadow theatre in which decisions are made outside the boundaries of the council of ministers.
Angry with what he regards as a break with the platform on which the president was elected with his support, Xanana Gusmão announced last month that he would “wait another ten days” for Lu Olo to accept the government members before he would “take action” and formally accuse him of “usurpation of functions”. No action has yet been taken. The tug of war continues without a solution in sight.
For the benefit of comparative purposes, the present situation calls for a discussion of the role of the president in the Timorese political system. Two aspects should be considered. First, what is the power of presidents regarding the appointment of governments? Second, what kind of protection does the constitution award to presidents against moves to challenge his authority and eventually bring him before the courts?
Section 107 of the Constitution of the Democratic Republic of Timor-Leste (CRDTL) states that “the Government shall be accountable to the President of the Republic and to the National Parliament for conducting and executing the domestic and foreign policy in accordance with the Constitution and the law.” This is a clear indication that presidents can play an active roles in their relation with the government. For each new government, two steps have to be taken. First, according to section 85d (including all competencies exclusively incumbent upon the president), presidents “appoint and swear in the Prime Minister designated by the party or alliance of parties with parliamentary majority after consultation with political parties sitting in the National Parliament”. Although this section seems to restrict presidential powers, it fact it allows significant room for discretion, namely in cases when there is no pre-electoral majority in parliament (as it happened in 2007, 2012 and 2017). Also, constitutionalist Pedro Bacelar de Vasconcelos noted that this formulation “expresses the double responsibility of the government” before the president and the assembly.[i]
The second step is the appointment of government members. According to section 86h (including competencies in regard to other organs of sovereignty), it is a presidential competence “to appoint, swear in and remove Government Members from office, following a proposal by the Prime-Minister, in accordance with item 2, Section 106”, which in turn stipulates that “the remaining members of the Government shall be appointed by the President of the Republic following proposal by the Prime Minister”. It seems very clear that the president does not dispose of a power of initiative in the appointment of ministers, depending on a proposal by the prime minister; but conversely, it seems equally clear that the prime minister does not possess more than a competence to propose names without obliging the president to accept them. Previous presidents have used the power of rejection at least on two counts: José Ramos-Horta privately opposed some names proposed by the prime minister in 2007, and Taur Matan Ruak did the same with public knowledge in 2012. These are precedents that did not raise any objections at the time they took place, and what is more relevant, in one of those instances the current prime minister was then the president and is thus morally bound by his early attitude. In an interview given to me a few years ago, president Ramos-Horta expressed the following understanding of his powers regarding the nomination of ministers proposed by the prime minister:
“If I am the Head of State in charge of guaranteeing peace and security, if I must nominate ministers, I need to be confident not only of the prime minister’s capacities, but also of the ministers I am empowering. I bestow my authority behind each of them individually. So, I rejected two names proposed by the prime minster”[ii]
Concluding this section, the double dependency of the government on the president and the assembly offers the head of state the competence to have a decisive word on the appointment of the prime minister and above all, of his ministers. The present position of president Lu Olo seems thus to be solidly anchored in the country’s constitution and political conventions. But what if it was not? What could be done?
CRDTL devotes one full section (79) to “criminal liability and constitutional obligations” where it stipulates (in number 2) that “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”. For a complaint to be brought before the justice, however, the process must begin in parliament, where a qualified majority of two-thirds of its members is required to allow the move to reach the Supreme Court (number 3). This means that there is a strong political rather than institutional factor at play in any process to formally accuse the president of foregoing his constitutional obligations or abuse his powers. At the moment, the president’s party, Fretilin, controls 23 of the parliament’s 65 seats and is thus in a position to block any move destined to challenge the president’s position.
To a substantial extent, the actual presidential powers depend on the political conditions of the moment as on the institutional definition of his competences. The constitutional text defines very broad limits to the presidential powers, which will be more or less used according to the political conjuncture. Timor-Leste had three consecutive “independent” presidents, not affiliated with any political party, which rendered the articulation between the president and the assembly more open to variable geometries, and prevented the systematic opposition between presidential and parliamentary majorities. Now, with the first partisan president, things are significantly different. Even if one cannot presume that Fretilin and the other parties not represented in the executive will always vote against the government (as the recent vote on the state budget showed, the government which controls 34 seats obtained 42 votes in favour, several abstentions and only 9 votes against – the opposition parties having failed to adopt a common position and showing internal splits in the final vote), the likelihood that they can use their capacity to bloc any vote requiring qualified majority is strong. This circumstance contributes to reinforce the presidential influence, as he disposes of veto powers over every law or decree-law (CRDTL section 88). In the case of decree-laws, the president’s word is final; in the case of parliamentary laws, a qualified majority is required to overturn those that address fundamental issues (as stipulated in section 95), including budgetary issues as well as the fundamental laws of social security, health, education, defence and security, electoral laws, and more. That’s to say: an absolute majority in parliament does not entail a free hand in the definition of policies, as the president may force a qualified majority in order to allow for the implementation of the government’s program. In this light, the comparative strength of the president is a key element in the Timorese political landscape.
In this context, president Lu Olo is comfortable in his position, and his powers, articulated with his link to a party that controls more than one third of the seats in the House, are a serious challenge to the government’s simple majority. Certainly not by chance, several voices in Dili are predicting that Xanana Gusmão, leader of the largest party in the government coalition, would welcome the dissolution of parliament once again in order to try and take away from Fretilin two seats that would substantially change the nature of the presidential room for intervention. However, this would be a high risk strategy that may not be sympathetic to the prime minister, who has shown signs of “understanding” for the presidential opposition to cabinet members proposed by Xanana’s party. In any case, this would only be possible after six months have elapsed from the last election in early May.
Timor-Leste is thus living under uncertainty, and the economic performance has echoed the adverse conditions with a significant fall in its growth rate and a paralysis of most of the non-oil sector – and this economic slow down is not conducive to easy electoral victories. The state budget for 2018 was drawn to reverse the situation, although its effect will be limited in the short term (it has still not been approved by the president); and the 2019 budget will probably be in the same vein – in spite of being drawn by a government that has no finance minister. The one fact that has emerged with some accrued stability is the resilience of the presidency and its critical role in the politics of the country. How much longer will the president accept that the government continues to work in the absence of critical ministers before he can argue that the regular functioning of institutions is not being met, and that he may step up his intervention?