Constitutional kangkung water

The Timorese constitution, and its vagueness in the Portuguese language, is causing a lot of consternation in Dili. According to arguments by José da Teixeira and Sahe da Silva, the two spokesman for Fretilin, they believe the President is obligated to call on the party with the ‘most-voted’ to form government first. The phrase ‘most-voted’ does indeed figure prominently in Section 106 which states

O Primeiro-Ministro é indigitado pelo partido mais votado ou pela aliança de partidos com maioria parlamentar e nomeado pelo Presidente da República, ouvidos os partidos políticos representados no Parlamento Nacional.

The official English translation, which is NOT a direct, word-for-word translation, but instead captures the spirit and practice of this form of government:

The Prime Minister shall be designated by the political party or alliance of political parties with parliamentary majority and shall be appointed by the President of the Republic, after consultation with the political parties sitting in the National Parliament.

So the English translation is specific, stating that either option (party or alliance of parties) must have a parliamentary majority. This is not the case in the Portuguese version.

A Portuguese commentator on the ETAN Timor list reminds that Portugal’s most famous Prime Minister, Mário Soares, took office after his party won only 34% of the vote in 1976. But this only occurred because none of the losing parties were willing to enter into coalition with each other. (The parallels between that election and this one would make an interesting post of its own.)

Sahe and Teixeira also point out that the constitution refers to the possibility of a coalition of parties forming government if they are recognized before the vote. They refer to this as a ‘pre-election’ coalition. Their argument appears to have some validity, but is not specifically set out by the constitution itself. And most observers from European parliamentary democracies would point out that post-election horse-trading and coalition-making is a vital feature of this form of representative democracy.

Xanana appears to be drawing together a coalition of the major opposition parties. The main sticking point was La Sama and the Partido Democrático, who feel undercut by the rapid organization of CNRT, a party which took away a lot of the PD’s support base.

La Sama has been villified, ridiculed and sidelined for much of the past couple of years by the ruling party. He also has good reasons to want to stymie Fretilin. Yet interestingly, in these past few days, he drew his power from his hesitance to align with Fretilin OR a potential CNRT-ASDT-PSD coalition.

If he had publicly agreed to allow for a Fretilin government, and agreed to work with them on passing a National Budget, he would have supported the (rather eccentric) Teixeira/Da Silva argument that a Fretilin government is a legal and a pragmatic option.

Indications are, however, that he has agreed to ‘coalesce’ into a CNRT-ASDT-PSD coalition. Yet for all of the reasons I have stated above about rivalries and potential shifting political groupings, I fear that this coalition is starting from a weak footing. And the Fretilin’s questioning of the constitutional legitimacy of a Presidential ‘invitation’ to this coalition lingers.

Things are looking about as clear as a the water in a Caicoli kangkung field at the moment.

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