Freeman Halle. Freeman is a 2L at the Sandra Day O’Connor College of Law and an International Rule of Law and Security Fellow. Freeman worked as a legal intern with the Judicial System Monitoring Program during the Summer of 2021 studying Timor-Leste’s laws on presidential impeachment.
This summer I had the great privilege of interning with the Judicial System Monitoring Program. JSMP is a Timorese-led non-profit that was created to monitor the Ad Hoc Human Rights Tribunal in Indonesia and the Special Panels for Serious Crimes in Timor-Leste – tribunals that were responsible for hearing claims of human rights abuses that transpired during Timor-Leste’s 1999 bid for independence from Indonesian occupation. When the trials concluded, JSMP pivoted to domestic court monitoring and legislative advocacy work. Today, JSMP operates through three main sections: the Legal Research Unit, the Advocacy and Training Unit, and the Parliamentary Watch Program, the last of which is responsible for monitoring the proceedings of the National Parliament to ensure accountability and transparency. As an intern with the Parliamentary Watch Program, I was tasked with performing a comparative analysis of presidential impeachment mechanisms and crafting recommendations for how Timor-Leste might reform its own.
The impetus for this study was a 2019 spat between members of the National Parliament and President Francisco Guterres, popularly known as Lú-Olo. Timor-Leste has a semi-presidential system, where executive functions are split between a prime minister, who is the head of government, and a president, who is the head of state. The prime minister is responsible for appointing the government and for coordinating the activities of its ministers, among myriad other duties.[1] The president is the commander-in-chief of Timor-Leste’s armed forces and the “symbol and guarantor of national independence and unity of the State and of the regular functioning of democratic institutions.”[2] Timor Leste’s constitution also bestows several powers upon the president that he or she can use to check the prime minister and the National Parliament. For instance, the president can veto legislation or submit it to the Supreme Court for review,[3] they can dissolve the National Parliament where there is a “serious institutional crisis preventing the formation of a government,”[4] and they can dismiss the prime minister and their government when the Parliament has rejected their agenda twice consecutively.[5] The president also has a confirmatory role in approving the prime minister’s cabinet nominations[6] and in accepting the prime minister’s resignation,[7] but the constitution is unclear as to whether the president has any discretion in the exercise of these responsibilities. It was this indeterminacy that led to the 2019 imbroglio.
When Prime Minister Taur Matan Ruak advanced his cabinet appointments to President Guterres for approval, the president refused to confirm several candidates, most of whom were members of the National Congress for Timorese Reconstruction (CNRT) party.[8] Later, when Taur Matan Ruak’s governing coalition collapsed and he tendered his resignation, President Guterres declined to accept it, thereby preventing Xanana Gusmao – the head of the CNRT party, the leader of a new governing coalition, and a former president and prime minister – from forming a government.[9] In both cases, President Guterres asserted hitherto untested presidential powers to intervene in the composition of the government. In response, 19 deputies from the CNRT party petitioned the Supreme Court of Justice to intervene and review the constitutionality of the president’s actions.[10] The Court refused, holding that the only mechanism by which the National Parliament could hold the president accountable was the impeachment procedure outlined in Article 79 of the Constitution.[11] Seeking to preemptively clarify the impeachment process for members of parliament (MPs), and to identify potential pitfalls in the procedure, JSMP requested that we – myself and another intern from ASU, Priyal Thakkar – undertake this comparative study of presidential impeachment mechanisms.
Impeachment can be a powerful tool in democratic systems; it allows the legislature to hold government officials accountable for gross misconduct and to maintain the constitutional order of checks and balances. It can also be a politically charged and destabilizing process, particularly during presidential impeachments. If the impeachment process is lacking in due process protections it can begin to resemble a legislative coup. Conversely, an overly legalistic approach to impeachment can prove ineffective in the face of a serious political or constitutional crisis.[12] For instance, if impeachment is reserved for criminal conduct, the legislature may be powerless to challenge a president who aggrandizes his or her power at their expense. A workable impeachment mechanism must strike a balance between accountability, efficiency, and the need for due process protections. To see how other countries have balanced these interests, we undertook a review of 114 impeachment mechanisms: 94 from countries with civil law traditions, 8 from common law countries, and 12 from countries with mixed common/civil law traditions. For each country, we asked three questions: how are impeachable offenses defined, who can initiate an impeachment, and who has the power to adjudicate the charges and convict the president?
Of all our findings, I was especially intrigued to learn that most countries vest the power to adjudicate impeachment charges in the judiciary, not in the legislature; we in the United States are most familiar with the latter approach. Currently, Timor-Leste follows the court-based model. To start an impeachment, a group of at least one-fifth of the MPs must propose impeachment charges through a motion.[13] From that point, a special committee is formed to draft a report and opinion on the charges, which is presented during a plenary meeting of the National Assembly.[14] If two-thirds of the MPs vote in favor of impeachment, the charges are brought before the Supreme Court of Justice, which decides whether the president is guilty.[15] If found guilty, the president is automatically removed from office and precluded from seeking reelection.[16] This approach may do a better job of addressing due process concerns that are often raised in legislative impeachments, but does it make sense to vest this power in the hands of a small number of unelected judges? As Alexander Hamilton claimed in Federalist no. 65, “[t]he awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.”[17]
In crafting recommendations for Timor-Leste’s impeachment procedure, I drew heavily from the Brazilian and Lithuanian models. In Brazil, the impeachment process is bifurcated between common crimes and “crimes of responsibility” – a category that encompasses a broad range of sub-criminal constitutional offenses.[18] For common crimes, the president is answerable before the Supreme Court.[19] For all other impeachable offenses, the president is tried in the Senate using a similar process to the U.S. impeachment trial.[20] In this way, the judiciary retains jurisdiction over the cases that fall within its competency, while political questions – which may lack justiciable standards – are left to the politicians. In Lithuania, on the other hand, allegations of criminal and constitutional offenses are all reviewed by the Constitutional Court, but the ultimate decision as to the president’s removal is left to the legislature.[21] If the Court finds that the accusations have a basis in law and fact, the legislature may remove the president with the support of two-thirds of the MPs.[22] However, if the Court finds that the accusations are baseless, the impeachment cannot proceed.[23] As the Court opined in the 2004 impeachment of former Lithuanian president Rolandas Paksas, this process was “a constitutional guarantee to the President of the Republic that [impeachment would] not be applied against him unreasonably.”[24] At the same time, it relieves the judiciary of having to play the role of king slayer.
The report and its recommendations are still being finalized, but I am confident that the final product will be a valuable resource for the National Parliament. This internship provided an unparalleled opportunity to apply my legal research and writing skills to a complex, high-stakes international project. I am tremendously grateful to the staff at JSMP who welcomed me into their team and taught me about Timor-Leste’s history and governmental system. Despite my disappointment at not being able to intern in person, I had a wonderful experience and I look forward to visiting Timor-Leste in the future. I am also grateful to the ASU Public Interest Fellows program for its generous support, and to the International Rule of Law and Security Program at ASU for connecting me with this opportunity.
[1] Const. Timor-Leste., art. 115 (2002).
[2] Id. art. 74.
[3] Id. art. 85.
[4] Id. art. 86(f).
[5] Id. art. 86(g).
[6] Id. art. 106(2).
[7] Id. art. 112(1)(b).
[8] Rui Feijo, Timor-Leste: a critical ruling by the Constitutional Court, Presidential Power (Feb. 12, 2020) https://presidential-power.net/?p=11437.
[9] See id.
[10] See Judicial System Monitoring Program, Parliamentary Watch Program Annual Report 2020 31 (2021) https://jsmp.tl/publications/relatoriu/.
[11] See Feijo, supra note 8.
[12] See Ginsburg Et Al., The Comparative Constitutional Law of Presidential Impeachment, 88 Univ. of Chi. L. Rev. 81, 133 (2021).
[13] Const. Timor-Leste., art. 79(3) (2002).
[14] Rules of Procedure of the National Parliament [Rules of Proc. of the Nat’l Parliament] art. 187(2) (Timor-Leste); id. art. 188(1)
[15] Const. Timor-Leste., art. 79(1), (4) (2002).
[16] Id. art. 79(5).
[17] See Nixon v. United States, 506 U.S. 224, 233-234 (1993) (Quoting Alexander Hamilton’s Federalist no. 65).
[18] See Law 1079 (Braz.).
[19] Const. Braz., art. 86(1)(I) (2017).
[20] Id. art. 86 (1)(II).
[21] See Constitutional Court of the Republic of Lithuania [Const. Ct. of Lith.], Mar. 31, 2004, Case No. 14/04.
[22] Const. Lith., art. 74 (2019).
[23] See. Const. Ct. of Lith., Mar. 31, 2004, Case No. 14/04.
[24] Id.