Timor-Leste – “Belligerent cohabitation” at work

One week after the parliamentary elections that returned an absolute majority for the AMP coalition (comprising former president Xanana Gusmão’s CNRT, former president Taur Matan Ruak’s PLP and a youth-oriented KHUNTO) but awarded the current president’s Fretilin the largest bloc of seats in the House (the party being unable to capitalize on its five percentage points increase in the number of votes due to a different composition of running parties), president Lu Olo addressed the nation on the occasion of the 16thanniversary of the restoration of independence (and the first of his assuming the presidency). In his speech, Lu Olo made three very important points

  1. He claimed he would discharge his functions as “president of all Timorese” but would not give up his position as chairman of his own party. This was no more than the confirmation that for the first time Timor-Leste would have a president who is aligned with one specific party, all his predecessors having been “independent” without party ties (although two of them did form their own parties after stepping down, in order to run for the seemingly more powerful premiership);
  2. He stated he would be particularly attentive to “the national interest” of which he argued the president is the highest and more authoritative interpreter;
  3. He reaffirmed is willingness to use all the constitutional powers at his disposal, contradicting those who expected that after a significant political defeat (he called early elections that did not change the nature of the distribution of power among competing parties and his own party failed to secure the bases to form or integrate the new government) he would assume a lower profile

In brief: Lu Olo made it plainly clear his would be a very active presidency not shying away from confrontations when he would feel it necessary to intervene. He was comforted by the fact that a substantial number of cases to overturn a presidential veto require a two-thirds majority  – and his party had more than one third of the parliamentary seats. Cohabitation was emerging under the sign of “belligerent democracy”. A sign of this general attitude was Fretilin´s decision to threaten with expulsion any militant who might be tempted to accept a place in government in a “personal and technical capacity” as had been current in the country for over a decade. A new era is definitively making itself present, eventually making political decisions more transparent and in line with normal expectations on parties’ behaviour.

The first serious confrontation occurred with the formation of the VIII Constitutional Government. Contrary to early expectations (based on declarations in the aftermath of the elections), Xanana declined to assume the premiership, entrusting the job to Taur Matan Ruak (TMR), leader of a much smaller party (8 seats versus 21), and reserved for himself the role of “state minister councillor to the prime minister”. TMR was sworn in as prime minister and proposed to the president a cabinet with 41 full ministers and junior ministers. Lu Olo rejected 12 of those names. One of them was personally close to the new prime-minister, and the refusal was explained on strict bureaucratic terms: as he was serving in the high command of the armed forces, he would need his resignation from the previous post to go through the necessary legal steps. In due course, he was appointed to serve as minister for defence. As for the other 11 – all of whom belonged to Xanana’s CNRT, the only party in the coalition with government experience – the reason given was that two of them had not “the right moral profile” and the others were supposedly under investigation by the judicial authorities on corruption charges.

Although the president denied that he had vetoed names, but only “called the attention of the prime minister” to situations that might harm the public opinion on the government, he also claimed he “was intent on reinforcing the judicial system” by not granting immunity to some politicians that had, in the past, benefitted from their status to avoid immediate prosecution (an allegation directed at Xanana who, as prime minister, had asked parliament to keep some of his ministers under conditions of immunity till the end of their terms). Regarding the use of his powers, he said: “The choice of ministers belongs to the majority in the House. The president may not say that this one is more capable than the other. He has to wait and see, only later can he interfere”. But at some point, he can actually interfere by refusing to appoint ministers.

Lu Olo’s interference in the composition of government generated a first moment of tension within the coalition. The prime minister seems to have accepted the president’s opposition to empowering individuals tainted with corruption charges in a country where this is a critical issue as constitutionally and politically warranted, and showed signs of pressing his coalition partner to propose new names.  TMR was also prisoner of his own public rejection of a minister when the V Government was formed soon after his election for the presidency back in 2012, and thus very limited in his capacity to deny Lu Olo the power to reject some of his ministers. Xanana, on the other hand, received the news as a personal attack, and reacted angrily: he and few other ministers from his party failed to take the oath, leaving the government with sensitive portfolios without their ministers. Besides the strong portfolio entrusted to Xanana, the minister for finances is among those remaining vacant due to presidential opposition. In parallel, he mounted an attack on the president. On the one hand, he claimed he had received undue payments from the state related to his presidential campaign – an accusation that failed to gain traction; on the other, he claimed that not only was the president disregarding the principle of presumption of innocence, but that he had acted in a completely different manner when Mari Alkatiri presented the composition of the VII Government in which four members were also under judicial investigation. He also made public statements from judicial authorities allegedly denying the basis for the president’s attitude.

In the meantime, arguing the inconvenience of the absence of the president from the country at a time when there was only “half a government”, the National Parliament denied the president’s request to undertake a state visit to Portugal which had been scheduled for quite a while. This move was openly criticized by the commander in chief of the armed forces, a move that does not bode well for the neutrality they are supposed to keep, and add a new player to an already confusing situation

The VIII Constitutional government, which is ruling under the provisions of the 2017 state budget in 1/12 monthly instalments, approved a piece of emergency legislation destined to raise funds from the Petroleum Fund in order to meet its financial obligations. However, the sum in question is above the Estimated Sustainable Income of the fund, and expectations are high that the president might use his veto power to put additional pressure on the government, which might be unable to meet its monthly obligations (and therefore suffer in its level of popularity)

At the time of writing, time is ticking for the government to present its program before the House, which must occur within thirty days of the appointment of the prime minister (22 June). Devoid of key ministers, the prime minister has conducted cabinet meetings open to those who have been rejected by the president to help with drafting the program. It is not clear what will happen if the deadline is broken, but grounds might emerge for the president to consider that political institutions are not performing adequately – a case allowing for the dismissal of the prime minister

The tension between the president of the republic and the leader of the winning coalition is unprecedented. It rests to be seen whether Lu Olo and his party are not attempting a political move to break the coalition between Xanana and TMR, who appears to be more sensitive to the president’s arguments on corruption, and suggest a change of horses: Fretilin might be prepared to switch the leadership of the opposition with CNRT. In Dili, voices are heard calling for yet another dissolution of parliament and fresh elections, which in any case could not be decided before mid-November to be held in 2019.

The present situation in Timor-Leste has revealed that presidential powers, even though they may be dormant for a while, do not lapse by virtue of not being exercised. And presidential powers in the country are superior to what much of the literature has argued so far. Critically, the dual responsibility of the government before the parliament and the president of the republic (stated in section 107 of the Constitution), and the ways in which this prescription can legitimately be understood by a proactive president, require new consideration. Ultimately, the scope of effective powers of the president may be regarded as the reason for the current instability, much as the argument has been made for president-parliamentary systems.

The fact that Lu Olo seems to be adopting a proactive role should not be isolated from the fact that he is the first president who discharges his functions at the same time that he holds a high position in a political party – Fretilin – which is not represented in TMR’s government. The effective experience of cohabitation in its formal sense is a novelty, as the first three presidents were “independent”. Their terms were comparably more stable that the early part of Lu Olo’s term (disregarding the case of the 2006 crisis which had deeper roots), adding weight to the suggestion that the political wisdom of choosing non-partisan presidents reduced the prospects and the scope of confrontation that the constitutional model of dual responsibility of the executive might facilitate. With the decision to move away from the legacy of the previous experience, Timor-Leste is now confronted with a much more unstable situation.

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