Saturday, 19 May 2012

East Timor: The Constitutional Process Governing the Dismissal of the Government

Original Citation: 2006 ETLJ 4 East Timor: The Constitutional Process Governing the Dismissal of the Government

Article 112 of the Constitution of the Democratic Republic of East Timor provides that the dismissal of the Government shall occur when:

a) A new legislative term begins;

b) The President of the Republic accepts the resignation of the Prime Minister;

c) The Prime Minister dies or is suffering from a permanent physical disability;

d) Its programme is rejected for the second consecutive time;

e) A vote of confidence is not passed;

f) A vote of no confidence is passed by an absolute majority of the Members in full exercise of their functions.

The Constitution also provides that it is incumbent upon the  President, with regard to other organs, to "dismiss the Government and remove the Prime Minister from office after the National Parliament has rejected his or her programme for two consecutive times." Article 86(g) This article further provides that the President of the Republic shall only dismiss the Prime Minister in accordance with the cases provided for in the previous item and when it is deemed necessary "to ensure the regular functioning of the democratic institutions, after consultation with the Council of State".

One interpretation issue that arises here is that it might not be sufficient, for example, for the government party to exercise
inherent powers to remove and replace its designated Prime Minister. If the Prime Minister were to resist even his party's efforts to replace him, it seems that there must also be the failure of a motion of confidence or a successful motion of no-confidence in the Parliament (or one of the other bases for dismissal arises).

Even if there is such a motion, the dismissal must also be "deemed necessary to ensure the functioning of democratic institutions" and it is not clear how this deeming procedure is to be implemented.

Further, the President must, it seems, even if there is such a motion and a "deeming", consult with the Council of State before he may exercise any dismissal powers that have been initiated by the Parliament.

The Council of State is the political advisory body of the President of the Republic and is headed by him or herself. It is comprised of:

a) Former Presidents of the Republic who were not removed from office;

b) The Speaker of the National Parliament;

c) The Prime Minister;

d) Five citizens elected by the National Parliament in accordance with the principle of proportional representation and for the period corresponding to the legislative term, provided that they are not members of the organs of sovereignty;

e) Five citizens designated by the President of the Republic for the period corresponding to the term of office of the President,
provided that they are not members of the organs of sovereignty. [Article 90 Constitution]

Article 91 states that it is incumbent upon the Council of State to express its opinion on:

a) the dissolution of the National Parliament;

b) the dismissal of the Government;

c) the declaration of war and the making of peace;

d) any other cases set out in the Constitution and advise the President of the Republic in the exercise of his or her functions, as requested by the President.

Meetings of the Council of State shall not be open to the public. [Article 91(2) Constitution]

This is a brief summary of the constitutional regime that governs the dismissal of the Government in East Timor.

One thing that can be shortly concluded from this overview is that the President has no unilateral powers of dismissal and that both the Parliament and the Council of State must also be involved in the process.

Warren L. Wright
06 June 2006

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