The unconstitutional, irrational and damaging decision by President Jose
A legal opinion on the formation of an unconstitutional government
By Sahe Da Silva and José Teixeira
This opinion builds on an earlier opinion "Legal opinion on the
appointment of the Prime Minister and the formation of the Government in
Timor-Leste"  published by the East Timor Law Journal on 11 July 2007.
It examines the unconstitutional decision of President Jose Ramos Horta to
invite the second most voted party to form government (as opposed to the
most voted party).
Set out below is our analysis of President Ramos Horta's decision:
1. The decision to invite the second most voted party to form
government is unconstitutional. As stated in the previous opinion, the
mandate to form government is given to the party or a pre-election
alliance which receives the most votes in the parliamentary elections
(please see previous opinion for our analysis on this point). This is
because the electorate votes for the policies and programs of a political
party or a distinct and separate alliance. In the last election there
were only two distinct and separate alliances, that of PSD/ASDT and
FRETILIN, as the most voted party, should have been invited first to
form government and be given the opportunity to negotiate the passing of
2. It is common practice in other countries which have similar
systems to Timor-Leste to first invite the most voted party to form
government and negotiate the passing of its programme. Commentators who
argue that what has happened in Timor-Leste in relation to the formation
of the new government is standard practice around the world have not
acknowledged that certain steps must first be taken before the second most
voted party is invited to form government.
3. Under the Constitution of Timor-Leste (which is different to
Australia's) the real test of strength of any government is whether it can
pass its programme for national development through Parliament. This
requires an absolute majority of the members of Parliament in full
exercise of their functions.
The government is dismissed if its programme is rejected two consecutive
4. Post election coalitions are only relevant to controlling
Parliament, the supreme law making body and the most powerful institution
under the Timor-Leste Constitution.
5. The second most voted party can form government, but only in
certain situations relating to the failure of the most voted party to pass
its programme for national development through parliament.
The first situation where the second most voted party may be invited to
form government is after the most voted party's programme has been
rejected twice and the government has been subsequently dismissed. When
this happens there is a power vacuum because there is no specific
provision in the constitution to invite the second most voted party to
form government. A power vacuum will lead to the breakdown of national
unity and threaten the smooth functioning of democratic institutions. To
address the power vacuum, the President as the 'guarantor of national
independence and unity of the State and of the smooth functioning of
democratic institutions' can invite the second most voted party to form
government and attempt to pass its programme through National Parliament.
The second situation where the second most voted party may be invited to
form government is where the most voted party decides it does not have the
support in parliament to pass its programme and requests the President to
invite the second most voted party to form government. However, this can
only occur once the most voted party has at least been invited to form
government and is given the opportunity to negotiate the passing of its
programme with the other political parties with seats in Parliament.
6. There is no legal basis for President Jose Ramos Horta to use the
election of the President of Parliament to decide which party should be
invited to form government. This is because the election for President of
Parliament (a person) is starkly different to that of a programme for
national development, which as we stated above, is the real test of the
strength of government. One can also question President Ramos Horta's
use of the election for President of Parliament as the basis for his
decision given the vote was secret (ie it is impossible to confirm how the
members of parliament actually voted).
7. President Jose Ramos Horta's decision is damaging to democracy.
By inviting the second most voted party to form government, he never gave
FRETILIN, the most voted party, the opportunity and space to negotiate the
passing of the programme. The President's decision ignores the
expectations of 120,000 people who voted for FRETILIN. The decision is
also damaging to democracy because it is unconstitutional.
In addition, by not inviting the most voted party to form government
President Jose Ramos Horta has set an unacceptable precedent. In the
future, it could mean that the most voted party (or pre-election
alliance) which has won 40% of the vote may not be able to form government
if the remaining 60% of minor parties (and/or pre-election alliances)
announce an informal post election coalition immediately as was the case
after the 30 June 2007 parliamentary elections.
It is important to acknowledge that the most voted party won the
elections, that it be asked to form government and that it be given the
time and space to negotiate the passing of the programme.
8. President Ramos Horta's decision is also irrational. If President
Ramos Horta and FRETILIN both agreed on the need to form an inclusive
government, then one has to seriously question the President's decision to
invite the second most voted party to form government.
9. The coalition between CNRT and its allies was not a coalition
registered to compete in the parliamentary elections, but a loose grouping
which was brought together in the days after the election results were
announced. Despite arguing that they were a coalition within the meaning
of article 106, at the first opportunity in parliament CNRT and its allies
did not register in the Parliament as a grouping, that is as a "bancada"
Had CNRT and its allies been a coalition or an alliance one would have
thought that they would have registered as a 'bancada'. Instead, CNRT and
its allies (including each of PSD and ASDT which had formed a distinct and
separate pre-election alliance) registered as individual parties with
individual heads of each party in Parliament. This was presumably done to
ensure that the leaders of each party got the distinct privileges that
attach to being a leader of an individual party and the benefits that flow
from having that status. By taking this approach CNRT and its allies have
failed their own substantive test which formed the basis of their argument
to be invited first to form government ie they demonstrated that they were
not really a "coalition" or "alliance" in the meaning of the word.
10. The unconstitutionality of President Ramos Hortas decision is based
on a legal interpretation of the Constitution, which ideally should be
tested in the Court of Appeal, currently the highest court of law in
Timor-Leste. However, the Court of Appeal should not be asked to hand
down a decision on this matter because the current impasse is essential a
political problem, not a legal one. In Timor-Leste's emerging democracy
it is important that the judiciary be developed as an independent legal
institution and not be put under extreme political pressure.
Also, our political leaders must be responsible for the consequences of
their decisions in relation to the formation of the unconstitutional
government and not transfer responsibility to the Court of Appeal.
Sahe Da Silva
Bachelor of Law (Honours) and Bachelor of Business (Accounting) from the
University of Technology, Sydney
Bachelor of Law from the University of Queensland (St. Lucia)
 Article 106 of the Constitution
 Articles 108 and 109 of the Constitution
 Articles 86(g) and section 112
 Article 74 of the Constitution