By: Dionisio Babo Soares
For several months, the appointment of Dr Afonso Carmona as President of the Court of Appeal and the accompanying amendment to the Judicial Organization Law have generated intense debate in Timor-Leste. On April 16, 2025, the National Parliament approved the second amendment to Law No. 25/2021, establishing that, until the Supreme Court of Justice is installed, the President of the Court of Appeal is to be appointed by the President of the Republic from among judges with at least twenty years of service. Two weeks later, Presidential Decree No. 35/2025 formalized Dr Carmona’s nomination, citing his over twenty years in the judiciary as satisfying the new criteria under Article 76-A of Law No. 25/2021, as amended by Law No. 4/2025 of April 28, a sovereign act grounded in the Constitution’s allocation of appointment powers to the President of the Republic.
The crux of the controversy centers on Article 124, paragraph 3 of the Constitution, which stipulates that the President of the High Court must be chosen from among the first degree judges, a provision carried over, by necessity, to the Court of Appeal until the Supreme Court is operational. Critics argue that Dr Carmona’s status as a second-class judge of the first instance courts places his appointment in conflict with this constitutional text. They contend that the amendment to Law No. 25/2021 effectively circumvented this requirement by broadening eligibility to “ordinary judges” who have not previously served on the Court of Appeal or Supreme Court. This maneuver, they maintain, strikes at the heart of judicial independence by enabling political actors to influence the highest tiers of the judiciary.
On July 31, 2025, the Court of Appeal judged the amendment’s constitutionality, invoking its power of abstract constitutional review to strike down Article 2 of Law No. 4/2025. In its reasoning, the Court held that expanding the pool of candidates beyond those detailed in Article 124 violated the separation of powers and the non-delegation principles implicit in Articles 104 and 125 of the Constitution, which protect the judiciary from ad hoc incursions on its autonomy. By insisting that the leadership of the appellate bench be chosen exclusively from the existing apex court judges, the Court underscored the structural commitment of the Constitution to safeguard internal checks within the judiciary. The decision underscored the judiciary’s role as the guardian of constitutional integrity, affirming that legislative and executive actions must never invert the hierarchical order established by the Constitution.
The President’s office rebuffed the Court’s ruling as procedurally flawed, contending that he was neither consulted nor allowed to be heard before the abstract review of his decree, in breach of due-process guarantees under Article 37 of the Constitution. The office of the presidency further maintained that the Court’s judgment did not, and could not, invalidate the president’s constitutional prerogative to appoint the President of the Court of Appeal under Articles 129 and 130, which confer upon him unreviewable authority to promulgate judicial appointments. In his view, the abstract annulment of the amendment leaves untouched the legality of the specific act of nomination, a point he reiterated when he asserted that Carmona’s professional record fully satisfies the Constitution’s twenty-year requirement for judicial service.
In the public sphere, the fallout from this judicial standoff has been marked by vitriolic exchange among civil society groups, opposition parties in Parliament, the Ombudsman Office, and independent academics, each vying to interpret the Court’s nuanced decision through the lens of their own “limited” legal expertise. Calls for Dr Carmona’s resignation have given way to broader insinuations of executive overreach and legislative manipulation, overshadowing the impartial exercise of judicial review and eroding respect for the sovereign division of powers. The absence of a definitive pronouncement on the nomination itself by the Appellate Court has left room for interpretation and allowed non-judicial actors to fill the void with politicized narratives, intensifying public confusion and distrust in all branches of government.
This impasse underscores the urgent need for structural reform to prevent future stalemates and reinforce the rule of law. Firstly, Timor-Leste should establish, as foreseen in Article 128 of the Constitution, a permanent Constitutional Court or Chamber within the Supreme Court of Justice dedicated to the abstract and concrete review of laws and decrees affecting judicial appointments. Such a body would resolve constitutional conflicts through clear, binding interpretations, rather than fragmentary pronouncements.
Secondly, the Law on Judicial Organization should be amended to spell out a transparent, step-by-step procedure for consultations between the President of the Republic, the Superior Council for the Judiciary, and the Court of Appeal, harmonizing Articles 124 and 76-A and eliminating residual ambiguity.
Further legislative refinement is also warranted to clarify transitional provisions. Specifically, reinstating the original text of Article 77 of Law No. 25/2021, which delineated the interim functions and composition of the Court of Appeal until the Supreme Court’s installation, would restore the constitutional default mechanism for appointing its president. Should any future amendment be necessary, it must be accompanied by a parliamentary committee report detailing its compatibility with each pertinent constitutional article, from the appointment clauses in Article 124 to the judiciary’s independence under Article 107. This practice would uphold the normative hierarchy embraced by Hans Kelsen’s Pure Theory of Law and guard against legislative encroachments on the judiciary.
Finally, fostering a culture of legal literacy and cross-institutional dialogue will be essential to bridging the gap between complex constitutional doctrine and public understanding. The Ministry of Justice, in conjunction with the Judiciary Training Centre, could develop outreach programs and publish plain-language guides explaining the interrelation of constitutional provisions, judicial organization statutes, and the mechanisms for constitutional review. By demystifying the process, Timorese citizens, media, and civil society would be better equipped to engage in informed debate, grounded in the texts of the Constitution and laws rather than partial interpretations or political rhetoric.
The episode surrounding Dr Carmona’s appointment has laid bare critical fissures in Timor-Leste’s constitutional architecture. To safeguard judicial independence and uphold the sovereign division of powers, the Republic must undertake a concerted reform agenda in addition to the ongoing reform agenda: establishing a dedicated chamber for constitutional adjudication, refining the Judicial Organization Law to eliminate conflict with the Constitution, reinstating explicit transitional provisions, and promoting legal education. In doing so, Timor-Leste will resolve the current stalemate and fortify the institutional resilience necessary to deepen its democratic rule of law. (*)
This is exclusively a personal opinion and does not bind the institution the writer represents.
