By: Dionisio Babo Soares
The dispute over Judge Carmona’s eligibility erupted this year (2025), swiftly exposing a yawning gap in Timor-Leste’s constitutional architecture. This controversy over the appointment of Judge Afonso Carmona as President of Timor-Leste’s Court of Appeal crystallizes fundamental questions about the balance between executive prerogative and judicial independence. At its heart lies the constitutional amendment embodied in Article 2 of Law No. 4/2025, which expanded the pool of eligible candidates for the Court of Appeal presidency to include ordinary judges, rather than reserving that office exclusively for members of the Supreme Court. The Court of Appeal’s July 31, 2025, ruling that this amendment exceeded constitutional limits has generated a fierce debate over the proper contours of separation of powers and the mechanisms through which the Constitution of the Democratic Republic of Timor-Leste (CRDTL) can be invoked to police legislative and executive action.
The philosophical underpinnings of this dispute draw on Montesquieu’s articulation of the separation of powers and A.V. Dicey’s conception of the rule of law, both of which emphasize that no branch of government should usurp functions reserved to another. In the Timorese context, the Constitution vests judicial organization and the appointment of appellate judges in a framework designed to safeguard judicial autonomy from political interference. As Hans Kelsen’s Pure Theory of Law reminds us, constitutional norms occupy the apex of a normative hierarchy and must govern the creation and application of all subordinate legal acts. By altering the composition of the judiciary’s leadership, can the amendment threaten to invert that hierarchy and blur the accountability channels between the executive and the judiciary?
Judicial independence, a cornerstone of democratic constitutionalism, requires formal guarantees against removal or undue influence and substantive protections that ensure courts can adjudicate without fear or favor. Legal theorists such as John Hart Ely have argued that the legitimacy of judicial review derives from transparent procedures and clear lines of authority. In requiring that the President of the Court of Appeal be chosen from the Supreme Court bench, the original text of Law No. 4/2014 provided an internal checks-and-balances mechanism within the judiciary. By extending eligibility to ordinary judges, the ruling implies, the 2025 amendment risked diluting the signals of seniority and shared institutional culture that bind the judiciary together, potentially subjecting the appellate bench’s leadership to external influence.
The Court of Appeal’s decision turned on a close reading of Articles 106 and 107 of the Constitution, which delineate the powers of the President of the Republic, the Parliament, and the judiciary. In what is seen as a landmark interpretation, the Court held that the legislature’s amendment to Law No. 4/2025 violated the non-delegation principle implicit in Articles 104 and 125, which protect judicial functionaries from ad hoc expansions of executive authority. By insisting that the law contravened the Constitution’s structural commitments to an independent judiciary, the Court affirmed its role as guardian of constitutional integrity, exercising “fiscalização abstracta da constitucionalidade”, a preventive review of normative acts to ensure they comport with higher norms.
President of the Republic, José Ramos-Horta, rejected the Court’s ruling as procedurally flawed, insisting that he had a constitutional right to be heard in any dispute concerning his decrees. His position drew upon the due‐process guarantees enshrined in Article 37 of the CRDTL, which speak to the right of any public official to defend against allegations before a final determination. The President pointed to the absence of formal notification to his office as a violation of fundamental procedural fairness and raised questions about potential conflicts of interest among some magistrates. Framing the decision as an overreach of judicial authority, he emphasized that Carmona’s 24 years of service fully satisfy the Constitution’s 20-year requirement for appointment.
The Ministry of Justice, aligning with the President, reiterated its confidence in Judge Carmona and characterized his appointment as part of a broader judicial modernization program. Emphasizing that the amendment facilitating Carmona’s appointment formed only one element of reforms to enhance access to justice, the Ministry urged serenity and mutual respect in public debate. Drawing parallels to Brazilian and Portuguese experiences of judicial reform, government supporters argued that expanding the talent pool for court leadership could inject fresh perspectives into the judiciary and break insular decision-making patterns, thereby reinforcing, rather than undermining, judicial capacity.
By contrast, opposition parties FRETILIN and the PLP invoked Articles 150 through 155 of the Constitution to request “fiscalização abstracta” before the promulgation of the law. Their preventive review petition underscored fears that the amendment would tilt the balance of power excessively toward the presidency and weaken the courts’ internal self‐governance. Echoing Montesquieu’s warning about “the accumulation of legislative and executive authority in the same hands,” these parties argued that only a rigorous constitutional vetting process could avert a long‐term erosion of institutional checks and balances. The Ombudsman and civil‐society legal experts added that ignoring the Court’s declaration could trigger a constitutional crisis and potential criminal liability under Article 130 of the Penal Code for abuse of function.
“Fiscalização abstracta”, as practiced in Timor-Leste until the Supreme Court of Justice is formally constituted, enables the Court of Appeal to review the normative content of laws in the abstract, detached from any concrete case or controversy. This mechanism, drawn from continental European models of constitutional adjudication, is integral to upholding the rule of law. Without it, the judiciary would be forced into case‐by‐case drills that risk delaying relief and perpetuating unconstitutional norms in the interim. Indeed, Kelsenian theory suggests that the preventive orientation of abstract review is essential to maintaining systemic coherence between statutory enactments and constitutional mandates.
In the present standoff, Judge Carmona’s legal status rests on the intersection of competing constitutional claims. His appointment by Presidential Decree No. 35/2025 stands on a shaky procedural foundation, yet it has not been formally revoked. The Court of Appeal’s ruling invalidates the enabling amendment but stops short of ordering his removal, a gap that leaves Carmona’s presidency in limbo. The President and Government’s steadfast support underlines enforcement and underscores the absence of a higher constitutional tribunal capable of issuing binding decisions in disputes between the political branches.
This institutional ambiguity raises pressing theoretical concerns about the durability of rule‐of‐law norms in nascent democracies such as Timor-Leste. The normative order becomes susceptible to dueling interpretations when the apex constitutional adjudicator lacks finality. As Dworkin posits in Law’s Empire, the integrity of law depends upon principled coherence generated through authoritative interpretation. In Timor-Leste’s case, the delay in establishing the Supreme Court of Justice undermines that authoritative function, inviting forum-shopping and legal uncertainty.
The tension between the Superior Council of the Judiciary and the executive branch further accentuates the stakes. The Council disputes Carmona’s eligibility on procedural grounds and has signaled that it may refuse to recognize decisions issued under his oversight. Such institutional non‐recognition risks paralyzing appellate review and eroding public confidence in the judiciary. Comparative experience in Eastern Europe demonstrates that litigation grids can leave citizens without clear avenues for redress when judicial councils and executive offices collide.
Beyond administrative paralysis, the legal implications can extend to criminal liability. Suppose judgments signed by Carmona as President of the Court of Appeal were later invalidated. In that case, questions will arise about whether executive or judicial actors responsible for their promulgation could face sanctions for issuing unlawful acts. Under the Penal Code’s provisions on abuse of office, knowingly applying an unconstitutional statute can constitute a crime, exposing judges and executive officials to potential prosecution. Such risks underscore the systemic need for precise, binding constitutional mechanisms to resolve conflicts expeditiously.
The absence of a Supreme Court of Justice, a specialized constitutional tribunal empowered to render final decisions, looms large in this saga. Constitutional design theory teaches us that a hierarchical court system with a dedicated constitutional chamber is essential for unifying interpretive practices and containing conflicts between branches. The delay in operationalizing this institution exacerbates the Carmona predicament and signals broader governance challenges in legal infrastructure.
Ethical dimensions of the controversy are equally salient. Allegations that the Superior Council of the Judiciary may have misrepresented procedural facts in its advisory opinions call for an inquiry into possible breaches of duty and abuse of function. Upholding judicial ethics codes and ensuring transparent disciplinary processes are prerequisites for maintaining public trust. Whether through parliamentary oversight committees or independent ombudsperson inquiries, institutional accountability must follow the rule‐based logic articulated in Articles 140 and 141 of the CRDTL.
In conclusion, the Carmona affair is not simply a dispute over one appointment but a litmus test for Timor-Leste’s commitment to constitutionalism, separation of powers, and the rule of law. Theoretical insights from Kelsen, Dworkin, and Montesquieu converge to remind us that without clear hierarchies of norms, final adjudicatory authority, and robust procedural safeguards, the promise of an independent judiciary can falter. Timor-Leste’s legislature, executive, and judiciary must collaborate to establish the Supreme Court of Justice without delay, refine the procedures for abstract constitutional review, and reinforce the ethical frameworks that govern judicial appointments. Only by doing so can the nation secure the foundations of its hard-won democracy and ensure that future conflicts are resolved within the stable, predictable structures envisioned by its Constitution. (*)
The opinion is personal and does not bind the institutions the authority represents
