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Timor-Leste - The President wins the tug-of-war

Presidential Power - June 3, 2020

Rui Feijo – Francisco Guterres Lu Olo seems to have won the long tug of war that began soon after he was elected in May 2017, involving directly the president and the charismatic nationalist leader Xanana Gusmao, and has asserted a vigorous interpretation of the president's role in the delicate semi-presidential balance of powers in Timor-Leste.

In the regular elections that followed his election, the president's party – Fretilin – was returned as the largest party in parliament, although just short of scoring 30% of the vote. The broad convergence of parliamentary parties that had sustained the VI Constitutional Government, headed by Rui Maria de Araujo, a Fretilin cadre of a younger generation – the Gerasaun Foun -, collapsed as the party leader, Mari Alkatiri, claimed the right to become prime minister. This was not accepted by most other parties. President Lu Olo entrusted Alkatiri with the formation of a new cabinet, and all he could do was to present a minority government, Fretilin having garnered the support of PD (together they had 30 out of 65 parliamentary seats). The opposition to Alkatiri had the majority in the House and his government failed to be invested. The president kept Alkatiri in a caretaker capacity until the end of the buffer period that protects parliaments from being dissolved in the first six months after their election, and called fresh elections – the solution that Fretilin espoused and was opposed by the majority of the House, who claimed the right to lead an alternative solution.

The 2018 elections returned Fretilin again as the single largest party. The opposition to Alkatiri, however, had formed a pre-electoral coalition, and won the ballot. President Lu Olo had no room for maneuver and appointed a senior figure from the winning coalition to be prime minister. Taur Matan Ruak, the third democratic president of Timor-Leste who had formed a political party to pursue his vision for the country, and was the second largest in the coalition, was sworn in to lead the VIII Constitutional Government. For the first time Timor-Leste had a political situation that fits well the notion of "cohabitation": the party of the president did not belong to the governmental majority. Lu Olo interpreted his powers as enabling him to veto some names proposed by the prime minister to be cabinet members, and actually vetoed nine, almost all of them from one specific political party: Xanana Gusmaos's CNRT, the largest in the coalition. Names included would be ministers of such important portfolios as finance, health and natural resources. The reason presented by the president was the lack of "moral standing" and unspecified "suspicions" of corruption. Even when all those names were cleared by the judicial branch, the president kept his adamant position and refused to appoint them. The president's position weakened the capacity of government to discharge its functions, and restricted the main party in the coalition from having its position in the cabinet. Confrontation between president and parliamentary majority assumed several other aspects. For one, the majority in parliament systematically refused to give the president permission for overseas trips (UN, Vatican, Portugal). Conversely, the president suspended for long months the process of nomination of new ambassadors (critical elements in foreign relations in a country heavily dependent on foreign aid). The tug-of-war was undertaken by both parts.

In January 2020, Xanana Gusmao sought a clarification: his deputies prevented the approval of the budget without which the government had to tender its resignation. So Taur Matan Ruak claimed the coalition to be "dead" and offered his resignation. The president, however, did not act upon this new development, and the prime minister was kept in office while political negotiations took place.

At first, Xanana Gusmao seemed to have won: he was proposed as the new prime minister by a novel coalition that comprised KHUNTO (a party supporting the VIII Government), PD (a party that was in the opposition, and had supported the VII Government), and several smaller parties. Together, they commanded a majority of seats, relegating Taur Matan Ruak's PLP and the president's Fretilin to the opposition. However, the president was not satisfied with the solution, and asked for every single party in the new arrangement to organize a national convention or its equivalent to produce a written commitment to the coalition – an unprecedented requirement. They all complied.

In the meantime, the Covid-19 pandemic hit the country. The government asked the president to declare the state of emergency, with unanimous backing from parliament. Things began to change then. One month later, parliament was split on the need to prolong the state of emergency. Xanana and part of his coalition opposed such a move; other parties in his coalition were in favor. The coalition was effectively dead. The president and the prime minister joined forces to reshape the support basis of the VII Constitutional Government: CNRT was out, Fretilin was in. Mid-sized parties like KHUNTO (remained) and PD (joined ranks, with some MPs rebelling against the party leadership). Taur Matan Ruak – who had withdrawn his resignation – and his PLP retained the reins of government. Under the same name and designation, the nature of the VIII Constitutional Government was reversed: it is now a government in line with the president and his party.

Xanana Gusmao claimed that the president was overstepping his competences and behaving in an "unconstitutional manner". For instance, he should have appointed him as prime minister when he showed he had all the conditions for the nomination. He insisted that two months without a state budget should lead the president to dissolve parliament and call fresh elections. Being coherent with his assumptions, Xanana brought the cases to the Constitutional Court. It was a bold move that offered a major opportunity to clarify the extent of presidential powers in Timor-Leste. The response of the Constitutional Court could not have been clearer: short of a formal complaint supported by a two-thirds majority of parliament, and destined to impeach the president by virtue of his failure to discharge his functions according to the constitution, the court would simply not consider any claim. Parliamentarians who had filed complaints in the constitutional court received similar responses: the Constitutional Court would not interfere in the political arena. The judicialization of politics attempted by these actors was a complete failure. In a sense, it backfired on them as presidential powers were restated with force.

What can we learn from this protracted episode of a tug-of-war? I believe that three things are now clear

First, presidential powers are quite broad. A new meaning has been given to the constitutional provision (section 107) that governments are doubly responsible before the parliament and the president. Presidents can legitimately interfere in the composition of governments. Presidential discretion to appoint a prime minister or his ministers, or, conversely, not to nominate someone who happens to have parliamentary backing, has been made very clear. It will influence the course of the next years in the politics of Timor-Leste

Second, the president's interpretation of the scope of his powers is only limited by political considerations. The Constitutional Court has interpreted its own powers in a minimalist way, and refused any direct interference in what it regards the normal course of political competition. The constitution remains in force, but several assumptions as to the best way to discharge presidential functions has been subverted

Third, a political party has made a clever move. For the first time since independence, the presidency is in the hands of a figure who has close ties with one specific political party – Fretilin. All three previous presidents had been "independent" figures without a systematic alignment with any party. In all legislative elections from 2007, Fretilin scored less than 35% of the vote, and was unable to craft a majority coalition. Having secured the control of the presidency in 2017, the party was presented with a new instrument in order to negotiate its access to executive power. This chance entailed the termination of what was hitherto the protocol for presidential action – to provide procedural neutrality. So far, Fretilin had to concede one point: it may not control all three major state positions (presidency, leadership of parliament and head of government), as it ambitioned. Mari Alkatiri was not returned to the position of prime minister, which sits in the hands of another party. But Fretilin seems to have managed to overcome the stigma of being unable to negotiate a stable association with executive power. All this was made possible by the introduction of a novelty into the political system of Timor-Leste: to have the president discharge party functions.

Beyond the tug-of-war that opposed mainly the president's party and Xanana's CNRT, a new configuration of presidential powers seems to have emerged with potential consequences in the mid to long term. Presidential election scheduled to 2022 will most likely be considerably different from previous ones.

Source: https://presidential-power.net/?p=1113