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.