As expected after the recent parliamentary elections in Timor-Leste, former President Xanana Gusmao will become the new prime minister. Current President (and former prime minister) Jose Ramos Horta, also elected earlier this year, has asked Gusmao to form a government.
But Mr Gusmao’s main rival, Fretilin party leader Mari Alkatiri, denounced the decision as illegal. [...]
Fretilin, under Mr Alkatiri, won 21 seats in the election, while Mr Gusmao’s new National Congress for the Reconstruction of East Timor (CNRT) party won only 18 seats.
Fretilin argued that it should form the government because it won most votes, but then the CNRT party formed an alliance with smaller parties, giving it 37 seats in the 65-member legislature.
So, does Fretlin have a constitutionally legitimate argument? In a word, no. The constitution is pretty clear in not giving any first-mover advantage in government-formation to the largest party. It also does not give the President any discretion. Section 85 of the Constitution deals with the President’s powers:
It is exclusively incumbent upon the President of the Republic:
…
d) To appoint and swear in the Prime Minister designated by the party or alliance of parties with parliamentary majority after consultation with political parties sitting in the National Parliament;
In case that is not clear enough, Section 106, which deals with the competencies of the Government states:
1. 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.
2. The remaining members of the Government shall be appointed by the President of the Republic following proposal by the Prime Minister.
Other sections of the constitution are equally clear that the parliamentary majority is sovereign on most matters (e.g. an absolute majority may override a presidential veto, and only the parliamentary majority may remove a cabinet). The constitution clearly established Timor-Leste as a premier-presidential system with strong privileges for whoever can control a majority of the parliament.
If the largest party is not part of the majority coalition, it gets to form the opposition–and that would be the case even if it were the president’s party that was the largest. In this case, of course, the majority coalition includes the ex-president’s party, which he formed specifically as a vehicle to propel him into the more powerful premiership (as president, he served as a nonpartisan).
Constitutionally, there can be no doubt of the right of Ramos Horta and Xanana to form a cabinet that excludes Fretilin. Nonetheless, recognizing the danger Fretilin’s capacity for violence could pose to political stability, Ramos Horta had attempted to forge a grand coalition, BBC reports.
So Xanana’s done a Chirac (or Koivisto?) in reverse.
Seed planted by Tom Round — 07 August 2007 @ 07:57
It’s pretty remarkable that the constitution, which was purpose-designed by Fretilin to disempower the president so that Xanana would not be able to act independently, leaves the decision on a new government to the president if the parties cannot agree. With such a strong prime minister and parliament you’d expect some procedure like Japan’s or PNG’s for parliament to designate the prime minister.
Seed planted by Alan — 12 August 2007 @ 23:53
I suppose it could make sense (eg, if you were a strong Condorcet-ite) to lay down a rule that “The PM is chosen (a) (if the Lower House can agree to support one candidate by absolute majority) – by the Lower House; (b) (if not) by the President.”
That would seem to produce the “strongest” executive govt a democracy can manage: you have neither (a) Weimar-, Italy-, PNG-, or France (Mark IV)-type changes of govt every few months, nor (b) USA-style situations (Carter in 1979-1980, and possibly Bush in 2007-08) where a president soldiers on despite being solidly opposed by the legislature.
Seed planted by Tom Round — 13 August 2007 @ 00:54
Correction: “Where an executive govt (or Cabinet) soldiers on…” Of course, under a Gaullist-type arrangement, the president would stay even if the Lower House voted out his/her favoured PM.
I’m not really sure if such systems would find an equilibrium, though. If the President were a non-party (or retired) figure, uninterested in running the govt and making policy, s/he might respond to a “hung” Lower House by simply appointing a PM with plurality support (as [West] German presidents have tended to do).
On the other hand, if the President were elected with a policy agenda of his/her own and was itching to implement it, s/he might try to undermine a PM of the opposing side, eg by forcing an early dissolution of the Lower House – c/f France.
Seed planted by Tom Round — 13 August 2007 @ 01:00
As I said above, I do not see any constitutional discretion for the president in selecting a PM.
There is no default, so I suppose one (especially if “one” were the president) could understand “To appoint and swear in the Prime Minister designated by the party or alliance of parties with parliamentary majority after consultation with political parties sitting in the National Parliament” to mean the president decides who has that majority (as long as some other PM candidate does not clearly have a majority).
However, all the provisions on approval of the programme, no confidence, and dismissal and dissolution make clear that the empowerment and removal of a government are up to the majority in parliament. If the president attempted to impose a PM opposed by a majority in parliament, that majority could remove that PM easily.
Seed planted by MSS — 13 August 2007 @ 13:39
Well, “majority” is ambiguous in English (dunno about Tetum or Portuguese, though). Brits would say that an MP with 45,000 votes against 40,000 and 10,000 for two rivals “has a majority of 5,000 votes”. Australians and USAns would say “What? There is no majority for anyone!” Much clearer to say either “plurality” or “absolute majority”.
A blue-ribbon commission in Australia once wanted to codify the rules of Westminster parliamentary govt in the Constituion (which at present says nothing more on the topic than “Ministers must be MPs, and serve at the Governor-General’s pleasure”). They produced a draft report that would have made it a binding (and, I assume, judiciable) constitutional rule that “The Governor-General must appoint as Prime Minister the MHR who has the support of an absolute majority of the House of Representatives.” It took all of 5 seconds before a number of critics pounced on this, pointing out that Australia quite often has “hung” Lower Houses at the State level [*], even though none federally since 1941.
[*] Since 1980: NSW in 1991, Victoria in 1999, Queensland in 1983 (briefly – until the Premier lured 2 third-party MPs to join his Govt) and 1998, South Australia in 2002, and Tasmania in 1989. Only the last one uses PR, by the way!
Seed planted by Tom Round — 14 August 2007 @ 21:18
Throughout the government-forming exercise Fretilin repeatedly claimed to be the ‘party with majority’. They equated ‘party with majority’ to mean ‘party with the most seats’ and argued against commissioning Xanana on the grounds that his alliance only formed after the election. A parliamentary election on the PNG model would probably have worked much more smoothly.
Seed planted by Alan — 15 August 2007 @ 01:10
> “argued against commissioning Xanana on the grounds that his alliance only formed after the election”
This is similar Tasmanian Liberal Premier Robyn Gray’s argument for asking the Governor to dissolve the State Assembly in 1989, rather than allowing Labor and the Green Independents to put together a post-election coalition.
Seed planted by Tom Round — 15 August 2007 @ 04:33
I won’t comment on any potential ambiguity in the use of “majority” in the government-formation clauses of the constitution, but my point is that there is no ambiguity that the government serves at the exclusive pleasure of the parliamentary majority (50%+1).
Thus, if Xanana really has the commitments of support he needs from other parties to reach 50%+1 (and I have no independent information on that), then there is no question that any attempt to put a Fretilin PM in office would result in the loss of that PM’s government programme being defeated and thus its constitutionally mandated resignation.
That is why it is premier-presidential and not even a little bit presidential. In the absence of a majority coalition, the president and/or the party with the plurality (but not majority) might be able to claim a first-mover advantage. But if there is a majority, such an effort is doomed to fail on account of other provisions of the constitution that clearly empower the parliamentary majority.
Seed planted by MSS — 15 August 2007 @ 14:38
One could derive a simple metric of how “parliamentary” or how “presidential” an executive system is, by asking: how long, after a lower house election won by Party/ Coalition X, could a Cabinet (or Cabinet member) solidly opposed by Party/ Coalition X, remain in office?
UK would be the “pure” parliamentary system. It doesn’t matter how deeply Her Majesty personally detests Mrs Thatcher – if it’s Thatcher’s Conservatives who won an absolute majority at the last election (or who have a plurality in a hung parliament, or who are the incumbent govt in a hung parliament, depending whose interpretation of the Westminster convention one favours), then it’s Mrs T who gets invited to Buck Palace for the kissing of hands (who kisses whose hands, I do not venture upon).
The USA, by contrast, is the extreme of a presidential system. Even then, Congress still takes the occasional Cabinet-level scalp… but it must wait nearly six years (Rumsfeld in 2007 – and even then, it was extra-legal and political factors, rather than constitutional rules, that brought about his dismissal by Bush) or else deny Senate consent before the official’s term begins (John Tower http://tinyurl.com/28rjyt in 1989).
France is in the middle. Depending on the balance of factors, a President faced with a hostile National Assembly may have to wait up to 12 months before he can legally dissolve it, and gamble on getting a PM/ Cabinet more to his liking – and even then, he may run the risk of losing a new election.
Other systems can then be placed on the spectrum somewhere between “24 hours” (UK) and “Up to six years” (USA).
Seed planted by Tom Round — 15 August 2007 @ 20:23
Addendum/ clarification:
“… how long, after a lower house election won by Party/ Coalition X, could a Cabinet (or Cabinet member) solidly opposed by Party/ Coalition X, remain in office solely because that Cabinet/ member is favoured by the Head of State? (whether president, monarch, governor or governor-general).
Seed planted by Tom Round — 15 August 2007 @ 21:18
I agree the Timorese constitution is not actually ambiguous. Much of the dispute may simply be Fretilin trying to work under the constitution they think they wrote as opposed to the actual text. However, the Xanana appointment led to riots in Dili and Bacau with Fretilin supporters calling the new government illegitimate. A more transparent procedure, such as parliamentary designation, may have vitiated the ‘We were robbed’ argument.
Seed planted by Alan — 17 August 2007 @ 23:10