If Xanana Gusmao does resign, that would be among the worst possible outcomes. Under Constitution section 82 the Speaker of Parliament Francisco “Lu Olo” Gutteres (a close Alkatiri supporter) would then take over as interim president, and a presidential election would have to be held within 90 days. This section also provides that a president who has resigned may not stand in the subsequent election and is disbarred from re-election as president for five years. Moreover, Gusmao’s resignation would very likely provoke large-scale civil disorder that Australian and international troops would struggle to control.

Hopefully this is just a bluff to give Fretilin a final push to depose Alkatiri as its nominated prime minister. It’s been suggested that there might be another Fretilin party meeting on Saturday, which could sack Alkatiri, so it would be most unwise for Gusmao to resign in advance of that. He should give Fretilin a little more room to manoeuvre. That would also give the police and independent prosecutor’s office more time to interrogate arrested former Interior Minister Rogerio Lobato to see whether they can extract admissions or evidence from him that would more clearly implicate Alkatiri, thus allowing him to be charged with a criminal offence. In that situation the Constitution provides that Akatiri is suspended from office until the charges are determined.

However, what if the situation worsens, Alkatiri still won’t resign and Fretilin won’t sack him, and the independent prosecutor (or Four Corners) uncovers more evidence implicating him but not enough to charge him? Could the President then effectively dismiss the government and call immediate elections, especially given that neither the Parliament nor PM has ever been elected as such?

Gusmao might conceivably invoke the constitutional doctrine of ‘necessity’, an underlying principle recognised and applied in the past by the courts of numerous countries. It holds that in times of extreme crisis, emergency action can be taken that would otherwise be illegal. It normally justifies measures like martial law, which is already provided for under the Timor Leste Constitution. However in a sufficiently extreme situation of severe civil unrest and a government refusing to resign despite clear but inconclusive evidence of serious illegal conduct by the Prime Minister, the doctrine of necessity might justify dismissal of the government and calling of immediate parliamentary elections. The constitutional doctrine of ‘effectiveness’, examined by the Fiji Court of Appeal in the wake of the Speight coup in 1999, might then legitimise a new government elected by that means.

This might be a workable option if Gusmao and Defence and Foreign Minister Jose Ramos Horta had the tacit backing of Australia for such a desperate expedient. However, who knows what the UN would do in such a situation. Would it agree to supervise elections? Or would the UN insist on reinstatement of the lawful (if unelected) government? And what would the Supreme Court do? Would it emulate the Fiji Court of Appeal and declare the new government illegal? The Timor Leste judiciary includes some Mozambican judges effectively on loan from that country given that the new nation does not yet have a significant cadre of sufficiently trained and experienced lawyers. Given Mozambique’s essentially Marxist regime, one might speculate that at least some judges could be inclined to adopt constitutional interpretations that favoured Fretilin.

There are far too many imponderable factors involved in such a strategy, although there’s little doubt that Gusmao and Horta would have considered it. The best hope is for President Gusmao to remain patient, hoping that the independent prosecutor gets enough evidence on Alkatiri to charge him so that he can be suspended from office constitutionally. In fact, a report in this morning’s Age suggests that Lobato has already implicated Alkatiri in a closed hearing yesterday before international judge Sandra Sylvestre from Brazil. If that is the case, it may well be that the prosecutor now has enough evidence to charge Alkatiri, which would then trigger the constitutional suspension provisions.

* Ken Parish is a former Labor MLA and publisher of the blog Club Troppo.

Peter Fray

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