[TimorLesteStudies] Bob B in timor

[Jennifer Drysdale]

>Date: Sat, 13 Jan 2007 13:01:43 +1100 (EST)
>Subject: Bob B in timor
>From: rboughto at une.edu.au
>To: jenster at cres.anu.edu.au
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>Ji Jen, seen this? From East Timor Law Journal. Can you pls post to the
>Studies list, my webmail adress wil probably cause me to be bounced if i
>do
>I'm in dili, still, until 3 february
>
>At
>http://www.eastimorlawjournal.org/ARTICLES/sahedasilvaeasttimorlawonpoliticalpartiescourtofappealdecisionfretilincongress20062007etlj1.html
>The Law on Political Parties (No. 3/2004) and the decision of the Timor
>Leste Court of Appeal in the case of Vitor da Costa and Others v FRETILIN
>(12 August 2006) - The election of Mari Alkatiri and Lu-Olo at the
>FRETILIN National Congress in May 2006.
>By Sahe L. Da Silva[1]
>1 Introduction
>In Vitor da Costa and Others v FRETILIN (12 August 2006)[2], the Court of
>Appeal of Timor Leste upheld the legality of the election by show of hands
>of Fransisco "Lu-Olo" Guterres and Mari Alkatiri to the FRETILIN
>leadership at the party Congress held on 17-19 May 2006 (Congress).  In
>its decision the Court focused on the legislative intention behind the
>drafting of section 18(c) of the Law on Political Parties (No.3/2004) and
>unanimously held that the section permitted two forms of election by which
>political parties could elect their leadership.  The first form of
>election is a vote by all members of a political party which has to be
>direct and secret.  The second form of election is a vote by a
>representative assembly of members which by its nature is not direct so
>does not have to be necessarily secret.
>In reaching its decision the Court of Appeal recognised the importance of
>having a secret ballot in elections for the holders of the leading organs
>of a political party in circumstances where it is done by all members of
>the party in a universal way.  Where there is a direct vote by all members
>of a political party it is essential to have a secret ballot because it is
>the exercise in a direct form of the will of each member.  A secret vote
>also minimises the risk of intimidation of party members and the
>manipulation of the electoral process.
>In the case of an indirect vote of a representative assembly, the Court of
>Appeal held that it is not necessary to have a secret ballot.  This is
>because the risks of not having a secret ballot are counterbalanced by the
>transparency and openness of a non-secret vote which makes the
>representative assembly accountable to its constituency.  The transparency
>and accountability of a non-secret vote by a representative assembly is
>important because political party members have transferred their personal
>right to vote to delegates over whom they have no control.
>The Court of Appeal's finding that a vote by a representative assembly did
>not have to be secret had some important consequences for the election of
>the FRETILIN leadership at the Congress.  Firstly, it meant that Congress
>did not violate section 18(c) of the Law on Political Parties when it
>passed by-laws which allowed the party leadership to be elected by show of
>hands.  Secondly, the Congress did not violate section 18(c) in electing
>by show of hands Lu-Olo and Alkatiri to the FRETILIN leadership.  Thirdly,
>the leadership of Lu-Olo and Alkatiri was not affected in its legitimacy
>because they were elected by a show of hands.   Fourthly, there was no
>basis for the Court of Appeal to order FRETILIN to hold an extraordinary
>congress to elect a new leadership as demanded by the applicants and
>President Xanana Gusmao.
>The Court of Appeal's unanimous decision represents a rebuff to critics of
>the vote who claimed that Alkatiri had acted undemocratically by changing
>the FRETILIN Statutes to allow voting by show of hands.  It also
>represents a rebuff to President Xanana Gusmao who had attempted to
>exercise judicial power when he declared the vote illegal.  In the
>writer's view, most of the criticism, particularly from the media, has
>failed to place enough emphasis on two important factors underpinning the
>election.  The first is that Guterres and de Jesus, the purported
>challengers, failed to meet the minimum threshold requirements to contest
>the leadership.  This raises the question as to whether there was a need
>to have an election at all given that there was only one candidate,
>Alkatiri and Lu-Olo, for each of the positions of the FRETILIN leadership.
>  The second important factor is that the decision to elect the leadership
>by show of hands was made by the delegates to the Congress and not
>Alkatiri.  The decision was made in accordance with the FRETILIN Statutes
>based on a proposal of more than 280 delegates of the Congress adopted by
>the latter.  Above all it is a fact that there was no other candidate
>contesting the leadership.  The failure to acknowledge that it was the
>delegates to the Congress and not Alkatiri who opted for the vote by show
>of hands is disrespectful to the delegates who acted within the legal
>parameters established by the FRETILIN Statutes and the Law on Political
>Parties.