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PP RUEHCHI RUEHNH RUEHPB
DE RUEHDT #0428/01 2341107
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FM AMEMBASSY DILI
TO RUEHC/SECSTATE WASHDC PRIORITY 2904
INFO RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC
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RUEHDT/AMEMBASSY DILI 2235

UNCLAS SECTION 01 OF 03 DILI 000428 
 
SIPDIS 
 
SENSITIVE 
 
DEPT FOR EAP/MTS 
PACOM FOR POLAD AND JOC 
NSC FOR HOLLY MORROW 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV KJUS KDEM TT
SUBJECT: FRETILIN FACTIONS RESPOND TO COURT DECISION AFFIRMING 
ALKATIRI'S ELECTION 
 
 
DILI 00000428  001.2 OF 003 
 
 
¶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 
 
SIPDIS 
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 
--------------------------------------------- ------------ 
 
¶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 
 
DILI 00000428  002.2 OF 003 
 
 
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 
--------------------------------------------- -------------------- 
 
¶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 
------------------- 
 
¶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 
 
DILI 00000428  003.2 OF 003 
 
 
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 
-------------------------- 
 
¶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 
 
SIPDIS 
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