Subject: PM's immunity from prosecution?
There has been some discussion about the issue sof immunity from prosecution by the former East Timorese Prime Minister Mari Alkatiri. I would like to offer the following interpretations of the relevant section of the East Timor constititon.
Section 114 reads: 'No member of the Government may be detained or imprisoned without the permission of the National Parliament, except for a felonious crime punishable with a maximum sentence of imprisonment for more than two years and in flagrante delicto.'
This can be interpreted to mean that no serving MP can be charged. However, and especially given the Rogerio Lobato has already been charged although beign a serving minister at the time of his alleged offence, there are other possible or more complete readings.
One reading is that if the MP in question is no longer a serving MP then they can be charged.
Another is that if the crime in question is not connected to their official duties they can be charged. (That would apply in Alkatiri's case).
Yet another, related intrpretation, is that immunity only applies to the consequences of fulfilling the requirements of office, e.g. the PM can't be sued for making decisions that result in violent and destructive protests. This, however, does not apply to arming a hit squad.
Yet another interpretation is that immunity does not apply if it is a 'felonious crime'.
Monteiro need only establish that this was a felonious crime not conneted with Alkatiri's official duties for him to be legally charged. The legal precedent is Lobato's charge.
However, Monteiro's request to the parliament to waive Alkatiri's immunity reflects three things:
1. That Monteiro's position has been threatened by some members of Fretilin.
2. That Monteiro is looking to avoid a possible Supreme Court challenge/appeal, for which neither he nor the country are prepared.
3. Just how poor East Timor's legal system is, when even the Prosecutor doesn't appear to understand the law, and neither does the parliament, even though it has already been applied in a like case.
Associate Professor Damien Kingsbury Director, Masters of International and Community Development School of International and Political Studies Deakin University Ph: +61(0)439638834