FRETILIN FACTIONS RESPOND TO COURT DECISION AFFIRMING

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SUBJECT: FRETILIN FACTIONS RESPOND TO COURT DECISION AFFIRMING
ALKATIRI'S ELECTION


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1. (U) Summary: The Court of Appeals this week issued its
official decision rejecting the argument that the re-election of
Mari Alkatiri and Francisco "Lu'olo" Guterres to the Fretilin
party leadership at the party congress in May was illegal. The
case was brought by members of Fretilin's internal opposition
group, "Fretilin Mudansa", who claimed that by instituting a
public show of hands for the leadership elections, the Party had
violated the Political Party Law's requirement for a secret
ballot. The Court held that the petition was filed too late,
applying a provision of the Civil Procedure Code that requires
parties to a civil case to file procedural objections within ten
days. The bulk of the Court's 18-page decision, however,
attempts to show that the Political Party Law did not require a
secret ballot to be held at the convention, so that the

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petitioners would have lost on the merits even if their
complaint had been timely filed. Both parts of the Court's
decision have been harshly criticized by Timorese and
international legal analysts. Alkatiri and other members of the
current Fretilin leadership have responded enthusiastically to
the decision, citing it as evidence that prior criticism of the
show-of-hands vote by President Xanana Gusmao and others was
unfounded and politically motivated. The Fretilin Mudansa
group, while disappointed, does not appear to have been
surprised by the verdict and is redirecting its energies to a
political campaign directed at bringing about an extraordinary
congress to elect new leadership. End summary.

Court of Appeals rejects Fretilin opposition group's case
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2. (U) On August 14, the Court of Appeals issued a decision that
the re-election of Mari Alkatiri and Francisco "Lu'olo" Guterres
to the leadership of the ruling Fretilin party by a show of
hands at the party congress in May was legal. The decision was
in response to a case brought by members of Fretilin Mudansa, a
faction within the ruling Fretilin party that opposes the
leadership of Mari Alkatiri. ("Mudansa" in this context means
"change" or "reform".) The Mudansa group had put forward Jose
Luis Guterres, then East Timor's Ambassador to the United
Nations and now Foreign Minister, to run against Alkatiri at the
May congress, and many observers expected him to win. However,
he withdrew from the race in protest when the delegates voted to
abolish the secret ballot and hold elections by a public show of
hands, a move seen by many as facilitating widespread bribery
and intimidation by the pro-Alkatiri faction (see reftels).


3. (U) Last month the Fretilin dissidents filed a case claiming
that the election violated Article 18c of the Political Party
Law, which provides that party leaders "can only be elected by
means of a direct and secret vote of all party members or of an
assembly representing them".


4. (U) The Court's decision was based not on the Political Party
Law but rather on the Civil Procedure Code, stating simply that
it could not adjudicate the case because it was filed past the
time limit stipulated in the Code of Civil Procedure. (Comment:
Contrary to the court's opinion, the code article in question
appears to apply only to interlocutory motions in ongoing cases.
It does not purport to create a prescriptive period --- in
common law terminology, a "statute of limitations" --- after
which a party aggrieved by some action or event is barred from
bringing a lawsuit. Such prescriptive periods are typically
measured in years rather than days. End comment.)


5. (U) After holding that the action was barred because it was
filed too late, the Court went on to state its opinion that the
petitioners (plaintiffs) would not have prevailed on the merits
even if they had filed their action on time. The Court noted
that article 18c of the Political Parties Law gives parties two
options for electing national leaders: election by all party
members, or election by an assembly representing party members.
The Court held that the "direct and secret vote" requirement
applies only to elections by all party members, not to elections

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by an assembly. (Comment: Contrary to the Court's opinion, the
language of article 18c requires "a direct and secret vote of
all party members or of an assembly representing them." The
words "or of" preceding "an assembly representing them" ("ou de
assembleia deles representiva" in the original Portuguese) can
only refer back to the phrase "a direct and secret vote." End
Comment.)


6. (U) Finally, the Court held that even if the action had been
timely filed and even if the show of hands was illegal, it had
no power to order the remedy requested by petitioners, an
extraordinary party congress at which a secret ballot would be
held to elect new leaders. The Court also briefly addressed
other allegations by petitioners, including that the leadership
elections at the last Fretilin Congress in 2001 were by secret
ballot and that the show-of-hands ballot at the recent Congress
was part of a pattern involving bribery and intimidation of
delegates, as irrelevant to the legal case.

Decision provokes further criticism of Court of Appeals President
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7. (SBU) The decision has been subjected to harsh criticism both
by Timorese lawyers and by international observers in Dili.
Much of this criticism is directed personally at the decision's
apparent author, President of the Court of Appeals Claudio
Ximenes, who has been accused in the past of shoddy decisions
tending to favor the position taken by former Prime Minister
Alkatiri. In particular, most observers read the plain language
of article 18c as clearly requiring a secret vote either of all
party members or of a representative assembly. (See paragraph 4
above.) For instance, Dionisio Babo Soares, the co-chair of the
bilateral Truth and Friendship Commission who is a trained
lawyer, told Emboff the decision was "stupid" but consistent
with many other decisions made by Claudio Ximenes, the Court's
President (chief judge). Soares noted that there is increasing
concern among both East Timorese and internationals that
Ximenes, a Portuguese judge of Timorese extraction who has been
serving as East Timor's chief judge since 2003 while on leave
from his position in Portugal, not only makes key decisions
based on political rather than legal exigencies, but that he
produces low-quality and incoherent arguments. Other Timorese
lawyers, as well as Dili-based foreign diplomats and United
Nations lawyers, have made similar comments to Emboffs.


6. (SBU) Because the Court of Appeals is the highest court in
the country pending the establishment of a Supreme Court, there
is no further legal recourse available to the petitioners except
possibly a motion for rehearing or reconsideration before the
three judges who signed the unfavorable decision. In addition
to Judge Ximenes, the decision was signed by Judge Jacinta Da
Costa and Judge Maria Natercia Gusmao, both Timorese "trainee
judges." (See Ref ___). Although both Judge Da Costa and Judge
Gusmao are regarded as intelligent and fair-minded, both are
still in the process of achieving fluency in Portuguese, the
language in which the decision was written. Some observers also
speculated that their status as probationary judges supervised
by a committee headed by Judge Ximenes may have made them
reluctant to oppose what appears to have been his strongly held
view in this matter. Nevertheless, it is not out of the
question that a rehearing, with briefing and argument focused on
the two points discussed in paragraphs 3 and 4 above, might
result in a reversal of the Court's decision. Embassy has not
yet been able to learn whether the petitioners intend to request
reconsideration or rehearing.

Alkatiri triumphant
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6. (U) Alkatiri and his political allies have demonstrated that
they regard the Court decision as a clear political victory.
Alkatiri appeared at a press conference on August 16 with Lu'olo
in his first public appearance since he spoke to pro-Fretilin

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demonstrators shortly after his resignation in late June. The
press release issued at the press conference described the
decision as reinforcing Fretilin's strength as a party with wide
popular appeal. During questioning by journalists, Alkatiri
emphasized that the decision reaffirms the legitimacy of the
current leadership. There was wide media coverage the next day
of the press conference and especially of Alkatiri's statement
that President Xanana Gusmao, who has argued vigorously that the
show-of-hands vote was in violation of the Political Party Law,
"lacks the competency" to interpret the law.

Fretilin reformers unbowed
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7. (U) Although members of the Fretilin Mudansa group have
acknowledged the decision as a setback, they add that they were
not taken by surprise. They argue that the legal decision does
not remove the political need for an extraordinary congress to
readdress the party leadership issue. Specifically, they argue
that the criminal allegations against the party's Secretary
General (Alkatiri) and Vice President (former Minister of
Interior Rogerio Lobato) represent a crisis of leadership for
the party regardless of the legal issues. Egidio de Jesus, a
former Alkatiri cabinet member who is now a Fretilin Mudansa
leader, and other Fretilin reformers have responded to
Alkatiri's victory speech by declaring that if Alkatiri is still
Secretary General at the time of the 2007 elections, Fretilin

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will lose.


8. (U) In a conversation with Emboff last week, Aderito Soares,
one of the petitioners in the case, said the group has already
begun to collect signatures from party members in support of an
extraordinary congress. He said the reform group has a large
number of signatures already and that he believes recent events
have significantly expanded their support base within the party.
He reported that the group has recently held meetings in a
number of districts as well as a meeting over the weekend in
Dili.


9. (SBU) Comment: The Mudansa group appears to be demonstrating
greater political maturity and strategic thinking than they did
at the party congress where they neither planned for a possible
setback nor responded effectively when it arose. In contrast,
they are currently proceeding with a political mobilization for
which they had already prepared in anticipation of a decision
against them. Although Alkatiri and his allies will undoubtedly
be as deft and tenacious in resisting calls for an extraordinary
Congress as they have been in their previous efforts to keep
control of the party machinery, the Mudansa group's
determination --- coupled with the strong possibility that
Alkatiri will soon be indicted for serious crimes that might
include conspiracy to commit murder --- suggest that the
political struggle within Fretilin will continue. End comment.
REES