Subject: English translation of Court of Appeal's decision on the legitimacy and legality of Fretilin's 2nd Congress

Decision of Panel of Judges of the Court of Appeal Comprised of:

President Judge, Claudio Ximenes

Judge, Jacinta Correia da Costa

Judge, Maria Natércia Gusmão Pereira

Vitor da Costa, Vicente Mau Boci, Adérito de Jesus, Igidio de Jesus, César Moreira, Ricardo Nheu, Armando Midar and Adolfo António Belo, have presented a petition in which they requested the Court of Appeal to:

1st Inquire into the legality of the election of the party leadership of FRETILIN at its eleventh congress effected by a vote of a show of hands in violation of the terms of the law 3/2004 (on political parties), as well as the legitimacy of the present day leadership.

2nd Declare illegal article 17, No. 2 of the FRETILIN statutes which permit the election of the leadership of the party by a show of hands.

3rd Order FRETILIN to hold an extraordinary congress to elect a new leadership in accordance with the principles laid down in law 3/2004. 4th That the decision is taken immediately, given the present political crisis.

The allegations of the authors of the complaint which are of interest are: On the 18th of May 2006 the 11th Congress of the FRETILIN party adopted a method of voting by show of hands to elect the leadership of the party: the President and Secretary General, in accordance with the terms laid down in article 17, No. 2 of the Party Statutes, which states: “The option may be taken of a vote by a show of hands if such is proposed by 10% of the delegates or members of party organs and is approved by a majority.” The article referred to 17, No. 2, in violation of number 1 as the same article states that: “Voting is personal, direct and secret in elections for positions in FRETILIN’s organs at all levels.” The election at the 11th Congress, by a vote of a show of hands, of Mari Alkatiri as Secretary General and Francisco Guterres Lu-Olo as President, of FRETILIN, is illegal because: a) Article 18 line C of law 3/2004 establishes that “office holders of leadership organs (of political parties) shall only be elected by a direct and secret vote of all members or by an assembly representative of them;”

b) It has been the practice of the FRETILIN party since 1974 to elect its leadership by direct and secret vote;

c) The delegates who participated at the Congress were elected by secret vote;

d) The President of the Republic said in his address to the nation on 22 of June 2006 that the election of the FRETILIN leadership was illegal because it was done by a vote of a show of hands;

e) Election by a vote of a show of hands does not give delegates the liberty of expressing their political belief because there may always exist psychological, political and physical pressure on the part of those holding power and as such may kill the democratic spirit enshrined in the constitution and law of Timor-Leste.

Not withstanding the petitioners having requested the court make an immediate election, it had to comply with the principle and giving the contradicting party the right to respond prior to deciding.

Having been notified, FRETILIN, through its leadership, presented in a timely way its response, defending that the claim was groundless. It states that the request should be refused because: At the FRETILIN Congress 577 participant delegates of the 586 who were summoned, 550 of the delegates voted in favor of Francisco Guterres Lu-Olo for President and Mari Alkatiri for Secretary General. In accordance with article 55, No. 1 and 2 of the FRETILIN statutes, any list of candidates for the positions of President and Secretary General should be subscribed by 20% of the delegates;

The list of Francisco Guterres Lu-Olo for President and Mari Alkatiri for Secretary General was proposed by 515 Congress delegates;

The delegates who did not endorse that list represented less than 20% of the participating delegates, which made it mathematically not possible for another list of candidates to exist;

If the legislator desired to limit the election mechanism of the office holders of the leadership organs of parties to the mechanism of a direct and secret vote the legislature could not permit the election through the representative assembly, which is an indirect vote;

If the legislator wanted through line c of article 18 of law 3/2004, of 14 of April, to limit the election of office holders of leadership organs of parties to the mechanism of a direct and secret vote, the legislator would simply have said that office holders of leadership organs could only be elected by a direct and secret vote, or moreover, personal, direct and secret; if this had been the choice of the legislation the executive organs would have to have been elected directly by a secret vote of all members not allowing the possibility of indirect voting, through an assembly as was the case which is the congress.

With respect to what line c of article 18 states, understanding should be that of the need to mark a difference, that is, when the vote is by all members it should be direct and secret, but when it is by a representative assembly (of delegates) in the name of transparency and, obeying the social and political situation, the congress delegates should be conferred with a decision to choose a mechanism of meeting, to better enable them to be answerable to their votes or electorate. At the first FRETILIN congress in 2001, the delegates opted for a secret vote; prior to this there occurred two national conferences, one in 1981, in Timor-Leste, the method of vote for which is unknown, and another in 1998, in Sydney, Australia, in which a vote by show of hands was adopted; It is true that the Congress delegates were elected by direct and secret vote of members;

The opinion of the President of the Republic cannot serve as an argument to “illegitimize” the congress proceedings of any political party seeing as decision over these issues falls to the Court of Appeals, as set out in the terms of article 29, No. 2, of law 3/2004; The rationale of article 17 of the Statutes approved by the 11th Congress of FRETILIN is as follows:

a) When it refers to the “personal, direct and secret vote” it means, that is to say, in terms of the rule, the vote of all militants called upon to exercise that role directly and personally, as occurs with the election of the delegates to the congress;

b) The delegates in accepting to represent their notes should ensure or seek to ensure in line with and in sentiment with the vote confirmed by their votes.. As such, they can prefer a more open act, more transparent and just as democratic and a secret and direct vote;

c) Along the lines of thinking it is legitimate that the delegates preferred at the 11th Congress to vote by a show of hands.

FRETILIN also alleges that the complaint was lodged with the court much after the stipulated legal time period for doing so, and, therefore the elections challenged have been validated and are totally valid and indisputable.

The petitioners having been notified of the response and accompanying documents they pronounced themselves in the terms of the petition found in the record of proceedings particularly with respect to the record of proceedings, particularly with respect to the expiration of time of the complainant.

This Court is obligated to assess and decide.

The following are the issues that the Court of Appeal should decide:

a) If the Court of Appeal is competent to decide the petition presented;

b) If it is compulsory that an appeal should be made to the National Jurisdiction Commission, in terms of article 79, No. 1, c of the statutes of the party, which has competency to instruct and judge proceedings regarding the validity of deliberations of FRETILIN national and district congress, and what are the ultimate consequences of ignoring this jurisdiction;

c) If the challenge against the deliberations of the 11th Congress of FRETILIN was presented within the legal time limit and what are the consequences of its late presentation;

d) If article 17 No. 2 of the FRETILIN statutes, which permit election by a show of hands, violates article 18, line c of law 3/2004;

e) If the election by a show of hands of Francisco Guterres Lu-Olo for President and Mari Alkatiri for Secretary General of FRETILIN, contradicts the terms of Law 3/2004, and illegitimatizes its current leadership;

f) If the court can order the FRETILIN party to hold an extraordinary congress to choose a new leadership.

II. Proven Facts

The following are the proven facts relevant for a decision which the court considers proven:

FRETILIN held its 11th Congress, in Dili, on 17, 18 and 19 days of May 2006. At this Congress the party statutes were approved, the whole text of which are on the record of proceedings.

In these statutes, it is written in article 17, amongst other things, the following: “1. Voting is personal, direct and secret in elections for all positions in FRETILIN organ at all levels. 2. There may be a vote by a show of hands if for such it is proposed by 10% of delegates or members of organs present and approved by a majority; “ and in its article55, amongst other things, the following: “1. The President and Secretary General of FRETILIN are elected by the national congress by single lists only. 2. These single lists only are proposed by a minimum of 20% of the number of delegates to the congress.”

At this Congress only one single list of candidates for President and Secretary General of FRETILIN of candidates for President and Secretary General of FRETILIN was presented, comprising of Francisco Guterres Lu-Olo for the position of President and Mari Alkatiri for Secretary General;

At this Congress 577 delegates of 586 delegates summoned participated.

The list of Francisco Guterres Lu-Olo for President and Mari Alkatiri for Secretary General was proposed and supported by 515 delegates to the Congress; 550 delegates to the Congress voted in favor of Francisco Guterres Lu-Olo for President and Mari Alkatiri for Secretary General of FRETILIN.

The petition which challenges this election entered the Court of Appeal on the 6th of July 2006.

IV. Competence of the Court of Appeal

The petitioners direct their request to challenge the decision taken by the 11th Congress of the FRETILIN party to the Court of Appeal saying that the decision violated article 18, line c of law 3/2004 (on political parties0.

Article 29 of the cited law states that “1. The competent court for the present law is the Supreme Court of Justice. Whilst the Supreme Court of Justice has not been established and commenced functioning, the competencies foreseen in the present law shall be exercised transitionally by the Supreme Court of Appeal by a panel composed exclusively of national judicial magistrates.”

Notwithstanding the expression “Superior Court of Appeal” used in number 2 of this article, we have no doubt that the legislator is referring to the Court of Appeal, which was the highest judicial instance functioning in Timor-Leste at the time of the Timorese Constitution entered into force and continues to be it to this day, by reason of what is laid down in article 164 of that legal document, together with article 14 of Regulation 11/2000, amended by Regulation 25/2001, all of UNTAET, and 110, No. 2 of law 8/2002, of 20 September, in the edition of Law 11/2004.

The panel which is deciding this issue is composed of three judges of Timorese nationality, in compliance with the terms of number 2 of article 29. To complete the number of national judges required by the law, the Superior Judicial Magistrates Council indicated probationary judge Maria Natércia Gusmão Pereira be integrated into the panel, in terms of the referred article 110, No. 2 of law 8/2002.

As such, the Court of Appeal has competency to acknowledge the petition and the panel of judges is composed as required by law.

V. Failure to appeal previously to National Jurisdiction Commission

There is no indication in the record of proceedings that, before directing themselves to Court, the petitioners had turned to the National Jurisdiction Commission of FRETILIN, to which, as per the previsions of article 79, No. 1 ­ e, of the party statutes, is competent to instruct and judge proceedings on the validity of the deliberations of its national and district organs.

In the meantime, there is no legal or statutory prevision compelling a prior appeal to the organ before seeking the intervention of the court; and, in the absence of such a legal or statutory provision, this panel of judges is of the view that the failure at that instance cannot impede an appeal to the court.

VI. The late lodging of the complaint to the court

FRETILIN alleges in its response that when the petitioners lodged their challenge to the elections for the positions of President and Secretary General the legal time limit to do so had long lapsed, and therefore the challenged elections had been validated and are totally valid and is unquestionable. They argue that, as the law on political parties or any other law applicable in this case, the rule which regulates the time limit for judicial challenges to the deliberations of political parties is foreseen in the Civil Process Code in its article 119, No. 1, which stipulates that ten days is the general time limit for procedural steps, in the absence of a specific time limit, and in article 109 it stipulates that the procedural time limit is continuous.

In truth the referred to Law 3/2004 does not establish anything with respect to a time limit for challenge or accusations of violations of its rule; nor do there exist other specific rules applicable in the case.

As such, the Court has to fill this gap in the law applying in a subsidiary way the rule in the Civil Procedure Code we find article 119, No. 1, which says: in the absence of a special provision, the time limit of ten days applies to the parties petitioner for any action or inquiry, seeking nullity, deducting incidents or exercising any other judicial process and article 109, which says: the time limit for legal proceedings is continuous, as is suspended only during judicial holidays. Taking into account that the Congress commenced on 17 and ended on 19 May of 2006, when on 6 of July 2006 the petition challenging the election effected at this Congress entered the Court of Appeal, that had passed, at least, 48 days after the date of the election.

The petitioners did not provide any valid justification for the fact of having presented the challenge on that date. They allege only, on one hand, that the political stability of May and June affected their legal efforts and, on the other, that they had they had invoked in the challenge an absolute nullity based on article 48 of the Constitution.

With respect to the affect of the political instability in the country on the legal efforts of the petitioners, this panel of judges is unable to understand how the political instability in the country affected the legal efforts of the petitioners, nor what they desire to say with “legal effort”.

If it is time that the country has undergone a situation of disturbances and insecurity, above all during the week following the holding of the FRETILIN Congress, the fact is that the Courts remained open to the public and the petitioners do not allege nor demonstrate that this situation totally impeded them from attending the Court to prevent their claim challenging with the correct time limit, in a manner in which they can benefit from the mechanism of just impediment set out in article 111 of the Civil Procedure Code. Moreover, from the time of the arrival in the country of international forces, on 26 May, there was less reason for the situation in the country to be an impediment to the claimants to do so. Finally if the decision on the challenge is so important to the reduction of the political crises which Timor-Leste is undergoing, as is suggested by the claimants at the conclusion of their initial claim, the less comprehensible it is why they delayed 48 days in presenting the challenge which they should have presented in ten days.

With respect to the claimants invoking in their challenge the absolute nullity based on Article 48 of the Constitution, this panel of judges is unable to comprehend the relation which exists between the absolute nullity and article 48 of the Constitution what the right of the petition established in this article has to do with the time limit for presenting the challenge. With respect to the alleged invocation of “absolute nullity” in the initial petition is that they do not refer to absolute nullity there but to annulment, it being clear legally that absolute nullity and annulment are different things. What is right is that, as we will see further ahead, there is no place, for neither nullity nor annulment of the challenged elections, as it did not violate the cited article 18-c of law 3/2004 or any other provision.

As it has come to pass that the time limit in which the petitioners could have challenged the elections of the President and Secretary General of FRETILIN, this can no longer be put forward as being in course having been definitively validated; the Court can no longer acknowledge the request of the petitioners.

Notwithstanding the lateness of the challenge impeding the Court acknowledging the fundamental issue this panel of judges intends to analyze well also the substantive issues raised in the action to better clarify the validity of the arguments presented by the petitioners in the challenge claim.

VII. Article 17, No. 2 of the Statutes and Article 18-c of Law 3/2004

The petitioners allege as a fundamental challenge of the election of the leadership of FRETILIN that article 18-c of Law 3/2004 was breached by Article 17, No. 2, of the FRETILIN Statutes, which permit the election of the President and Secretary General of FRETILIN by a vote by a show of hands and their utilization of the vote by a show of hands in the election.

They present various arguments which we will analyze starting with the least relevant leaving to the end those requiring greater explanation.

The first of the arguments invoked by the petitioners in favor of their proposition is that article 17, No. 2 of the FRETILIN Statutes contradicting the provisions of number 1 of the same article, which says: “The vote is personal, direct and secret, in the elections for positions in FRETILIN’s organs at all levels.”

On this argument what can be said is that anyone reading article 17, even if that person does not have any legal training, will have no difficulty seeing that the provisions of its number 2 contains an exception to the general rule in its number 1; but also have no difficulty in remembering the popular dictum, “there is no rule without exception”; which is to say necessarily that all rules always have an exception. Whoever has at any time read statutes, laws or other rule documents for certain has encountered various articles containing amongst their number a provision establishing a rule and another establishing an exception. The fact that article 17 containing at the same time a rule in its number 1 and an exception in its number 2 does not advance anything on the question of knowing if article 17, No. 2, of the FRETILIN Statutes violates article 18-c of Law 3/2004.

A second argument is that of it having the practice of the FRETILIN party since 1974 to elect its leadership by direct and secret vote.

On this argument it suffices to say, firstly, that FRETILIN challenges the affirmation that it has been the practice to elect its leadership by direct and secret vote and the petitioners have failed to comply with the arms of proving what they have alleged; secondly, that, even if such a practice had been established, that is irrelevant to the question of knowing whether article 17, No. 2, of the FRETILIN Statutes violate article 18-c of Law 3/2004, for there being no legal provision or statutory provision compelling the party to elect its leadership in accordance with its previous practice.

A third argument is that the delegates who participated in the Congress were elected by a secret ballot.

On this argument we say simply that the fact of the delegates who participated in the Congress having been elected by a secret ballot does not imply that the election of the President and Secretary General of FRETILIN have to be elected by a secret ballot.

A fourth argument is that the President of the Republic said in his address to the nation on 22 June 2006 that the election of the leadership of FRETILIN was illegal for having been effected by a vote of a show of hands. On this argument we say that this declaration can only have the value of one opinion, seeing as no law nor the Constitution attributes the President of the Republic the competence to declare the illegality of the leadership of any party. On the other hand the Court cannot base itself on this opinion to decide over this challenge but before that has to do so in accordance with the proven facts and the law applicable to the case (articles 119 and 120, No. 2 of the Constitution).

A fifth argument is that an election by a show of hands does not give delegates the freedom to express their political beliefs because there always exists psychological, physical pressure on the part of whose?? Has power, and, as much, could kill the democratic spirit established in the Constitution and law of Timor-Leste.

On this argument we say that it cannot be accepted as a categorical affirmation that an election by a show of hands never gives delegates the freedom to manifest their political beliefs, although it is recognized that there is a dose of risk that this form of voting and the necessity to impose SECRET BALLOT IN CERTAIN DETERMINED situations. But, when it concerns an election through delegates in congress, as is the case, the use of the method of a show of hands has the virtue of compelling greater transparency, equal to a control by the members over the delegates who they choose, a control a secret ballot does not permit.

The final argument which the petitioners put forward in advancing the violation of line c of article 18 of law 3/2004, which deserves grater attention from this panel of judges, is the actual text of this line which says: “the office holders of the executive organs shall only be elected, by a direct and secret vote of all members or by an assembly representative of them”.

It is in the text of this line that the challenge is based, and it is through uncovering the meaning of this text, via its interpretation, that can be found the answer to the basic question.

Without going into great theoretic explanations, it’s important to point here to some principles which should guide this panel in its interpretation of the law: a) the interpretation should not be burnt on the letter of the law, but be reconstituted from the text but the legislative thinking reconstituted from the text, having above all regard for the whole legal system, the circumstances which the law was drafted and the specific conditions at the time in which it is to be applied; b) the thinking of the legislator cannot be taken into consideration by the interpreter which does not correspond in the minimum in the letter of the law, even if imperfectly expressed; c) in establishing the meaning and reach of the law, the interpreter should assume that the legislator established the most accurate solutions and was capable of expressing his or her thinking in adequate terms.

To understand the meaning of the text referred to it is convenient to briefly state here what a vote is, what a direct vote means and what a secret vote means from the perspective of what is of interest here, or rather, what is the manner of selecting office holders of party organs or of the country and the exercise of political power by the citizens.

The vote is the act by which citizens choose who they want to govern the country or members of a party choose who they want to lead the party. The basic rule of democracy is the submission to the will of the majority translated through the vote.[1]

The vote can assume two forms: direct or indirect vote.

As professor Gomes Canotilho states, “The direct vote or immediate vote means a vote which has to result <<immediately>> from the manifestation of will of the elector, without intervention of <<grand electors>> or any alien will. In other words: the immediacy of the suffrage guarantees the actual citizen the <<first>> and <<last word>>, because the electors directly give their vote to citizens (including or not by lists) which election constitutes the ultimate scope of the whole electoral process in the indirect or mediate suffrage, the electors limit themselves to electing a college of electoral delegates <<grand electors>> who, in turn, will choose candidates to the various organs of political power.”[2]

Looking at line c of article 18 of Law 3/2004, we see that it permits the use of two forms of voting in the election of executive organs of parties: a) a direct vote of all members; b) an indirect vote, through an assembly representing them.

In the first form of elections the members proper directly choose the organs of the party; in the second form of elections the members select delegates who, in turn, will choose, as their representatives in an assembly, the office holders of the executive organs.

Looking at the concept of the direct vote and indirect vote (direct suffrage, in the expression used by Gomes Canotilha) we see that, by its very nature, the vote of the assembly of the members, can never be direct, is always indirect. Therefore, when line c of article 18 speaks of a direct vote it can only be referring to a vote by the members, it cannot be referring to a vote of a delegate who in an assembly represent the members who elected him or her ­ the vote by the delegate can never be a direct vote, it can only ever be an indirect vote.

In turn, in a secret vote it is not possible to know who the member voted for nor a delegate who represents the member who chose him or her. The opposite of a secret vote is a non secret vote in which it is possible to know for whom the member or the delegate voted. The vote by a show of hands, is without any doubt, a non secret vote.

Returning to the analysis of the text in line c of article 18, we see that, purposely the vote of the members, it is said in this line, without any doubt, has to be “direct and secret”. And with respect to the assembly representative of members, does line c of article 18 mean to say that it has to be “direct and secret”? The answer can only be in the negative. Because, by its very nature, the vote of a representative assembly can never be direct, but will always be indirect. The legislator could never have imposed that the vote of a representative assembly of members should be direct, given that vote, by nature, could never be direct. In permitting that the office holders of executive organs could be elected also by a vote of a representative assembly of members the legislator could only be intending to say that it is permitted for the office holders of executive organs to be elected through an indirect vote; and so permitting, cannot impose the requirements (direct and secret) which are demanded for a vote by the members.

From here we have to draw the following conclusions, which will give the answers to the questions which this panel has to decide:

The first conclusion to draw is that line c of article 18 establishes two forms of election: a) one through a vote by all members win relation to which it requires that it be “direct and secret vote”; b) another through a vote of the representative assembly of members, in relation to which it cannot require that it be direct or require that it be secret.

The second conclusion to draw is that, as line c of article 18 does not require the vote by the representative assembly of members to be “direct and secret” article 17 No 2 of the FRETILIN Statutes does not violate line c article 18 of Law 3/2004.

A third conclusion to draw is that, as line c of article 18 does not require the vote by the representative assembly of members to be “direct and secret” the FRETILIN Congress was at liberty to adopt either a system of secret or non secret vote to elect the office holders to its executive organs.

A fourth conclusion to draw is that the FRETILIN Congress did not violate line c of article 18 in establishing in the party statutes the possibility of opting for a vote by show of hands (non secret vote) to elect the President and Secretary General.

The fifth conclusion to draw is that the FRETILIN Congress did not violate line c of article 18 in electing by a vote of show of hands (non secret vote) Francisco Guterres Lu-Olo for President and Mari Alkatiri for Secretary General of the party.

The sixth conclusion to draw is that the leadership of Francisco Guterres Lu-Olo for President and Mari Alkatiri for Secretary General of FRETILIN are not affected in their legitimacy by having been elected by a vote of a show of hands.

The seventh conclusion to draw is that there is no basis for this court to order that FRETILIN Hold an extraordinary congress to shoes a new leadership.

VIII. Consequence of the eventual violation of article 18 of Law 3/2004

A final question for this panel of judges to cover is to know what is the consequence of violating law 3/2004, namely the provision of article 18 line c.

To answer this question we have to look at the structure of the provision.

The proper meaning of a rule of social conduct contains a) a prescription ­ introducing one type of reality (event, conduct or relationship) ­ b) a regulation ­ linking the typical fact, as result of legal application (another fact, another event, and/or the necessity to adopt a specific conduct and/or formulation, modification or extinction of the legal relationship). Sometimes the provision establishes a sanction, threatens a reaction to the non compliance with the regulation, or, put in another way, prescribes a consequence which affects one who violates it. But there does not always exist a specific sanction threatening a violation of the regulation or provision.

Looking at the provision in line c of article 18 of Law 3/2004, we see that it contains a prescription and a regulation; but we cannot find in this article 18 or elsewhere in any other provision of this law any sanction for it s violation.

Comparing with other legal provision with law 3/2004 which expressly proscribe sanctions for their violation (article 21 and 28); it appears clear to us that the legislator deliberately did not want to establish a legal censure relevant to such a violation. In the absence of any such coercive measure, the court cannot substitute itself for the legislator, and sanction the eventual non compliance of the provision in question. The sanction for the violation of this provision is political and not legal.

The conclusion to be drawn here is that, even if there was a basis to declare the election of the President and the Secretary General was effected in violation of article 18 line c of Law 3/2004, the Court cannot order FRETILIN to hold an extraordinary congress to elect a new leadership in accordance with the principles of Law 3/2004.

Conclusions

By the proceeding, this panel of judges of the Court of Appeal decides: To judge out of time the complaint against the elections of the FRETILIN leadership made by Vitor da Costa, Vicente Mau Boci, Aderito de Jesus, Igidio de Jesus, Cesar Moreira, Ricardo Nheu, Armando Midar, and Adolfo Antonio Belo , and as a result of this, declares that the Court cannot adjudicate on the request of the complainants; To declare nonetheless, that:

a) Even if the complaint had been made n time, the request of the complainants should be wholly rejected given that: -line c of article 18 establishes two forms of election: (a) one by a vote of all members, in relation to which was required to be “a direct and secret vote”; (b) another by a vote of representative assembly of members in relation of which it was not required to be either direct or secret; -as line c of article 18 does not require a vote of the representative assembly of members to be “direct and secret”, article 17, line 2 of the FRETILIN constitution does not violate article 18 line c of law 3/2004; -as line c of article 18 does not require that the vote of the representative assembly of members be “direct and secret” the FRETILIN congress was at liberty to adopt a system of secret ballot or non-secret ballot to elect the office bearers to its party leadership structure; -the FRETILIN congress did not violate line c of article 18 in establishing in its party constitution the option of a ballot by show of hands (non-secret ballot) to elect its president and secretary general; -the FRETILIN congress did not violate line c of article 18 in electing by a ballot of show of hands (non-secret ballot) Francisco Guterres Lu-Olo as President and Mari Alkatiri as Secretary General of the party; -the legitimacy of the leadership of Francisco Guterres Lu-Olo as President and Mari Alkatiri as Secretary General of FRETILIN are not effected by their being elected by a show of hands; - there is no basis for the court to order FRETILIN to realize an extra ordinary congress to elect a new leadership.

b) Even if there had been a basis to regard the election of the president and secretary general as violation of the terms of article 18, line c of law 3/2004, the court cannot order FRETILIN to realize an extraordinary congress to elect a new leadership in accordance of the principles of law 3/2004.

Dili, 11 August 2006

Panel of Judges of Court of Appeal

President Judge, Claudio Ximenes Judge, Jacinta Correia da Costa Judge, Maria Natércia Gusmão Pereira

[1] Our Constitution, after stating that the RDTL is a democratic state, based on popular will (article 1 No. 1) that sovereignty resides in the people exercised in accordance with the Constitution (Article 2, No. 1), that political power is rooted in the people and is exercised in accordance with the terms of the Constitution (Article 62), it points expressly in various of its articles as to how the people exercise this political power. It says that “elected institutions of the state and local authorities are chosen through elections by means of universal suffrage, free, direct, secret, personal and regular” (Article 65, No. 1); that “ the political parties participate in the institutions of political power in accordance with democratic representation based on direct and universal suffrage” (Article 70, No. 1); that “the President of the Republic is elected by universal suffrage, free, direct, secret and personal” (Article 76, No. 1); that “the National Parliament is elected by universal suffrage, free, direct, equal, secret and personal” (Article 93, No. 1); that “the Prime Minister is indicated by the party with the majority or an alliance of parties holding a parliamentary majority and is nominated by a President of the Republic having heard the political parties represented in the National Parliament” (Article 106, No. 1). IN summary, in democracy it is through the vote that the citizens exercise their sovereign and political power which the Constitution attributes to them, choose the President of the Republic and the Parliament and determine who leads the government.

The Law 3/2004 defines political parties as “organizations of a permanent character of citizens, with the objective of participating democratically in the life of the nation and to compete for the formation and expression of the political will of the people, in conformity with the law and respective statutes and programs, intervening namely in the electoral process by means of presenting and sponsoring candidatures” (Article 1, No. 1) and imposes on them that their internal organization obey the rules of democracy, namely that their statutes and political programs are approved by the whole of their affiliated members or representative organs (Article 18, Line a) and that the office holders for their executive organs shall only be elected, by direct and secret ballot of its members or an assembly representative of them.

[2] J.J. Gomes Canotilho, Constitutional Law and Constitutional Theory, Almendra, Fourth Edition, Page 300.


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