East Timor Law Journal
Towards the rule of law in Timor-Leste
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2009 ETLJ 4 Defamation - a Crime or Not in Timor-Leste? A Legal Analysis by Nomen Nescio
Note: This is an English translation of an article written by an East Timorese lawyer in Tetum. The author did not wish to be identified. The English translation has been edited by the editor of the East Timor Law Journal. Click here to read the original Tetum text.
Introduction
Defamation was confirmed as a criminal offence in Timor Leste in 2003 in the case of a non-national versus Suara Timor Lorosa’e (a leading daily newspaper) where the court decided in favor of the non national. As a consequence, STL had to pay a lot of money to that person. This issue was also debated when the previous government tried to criminalise defamation through a draft of a new Penal Code that up to this day continues to be a “draft” waiting to be approved in the coming months. At that time everybody, civil societies, academics, Catholic Church and some international organisations did not agree with the plan of the previous government to criminalize defamation. That is why the President of the Republic (current Prime minister) invited everybody including the Judges of the Court of Appeal to an open discussion or debate on Televizaun Timor Leste (TVTL) and as a result the draft Penal Code is still pending (Thank God!).
However on the other hand, the Court of Appeal made a decision that “defamation” is still considered to be a criminal offence only because the executive order that was issued by the late Sergio Veira de Mello (during the United Nations Transitional Administration in East Timor period), was not on a par with other applicable laws or regulations in force in Timor-Leste. The last decision of the Court of Appeal, at that time headed by the President Claudio Ximenes, became “jurisprudence” in Timor-Leste. This Court of Appeal decision became a precedent for the Judges in dealing with cases of defamations issues.
Lately some people have complained to the police or the public prosecutor about defamation, as they think that they has been defamed through the media, and demand that their cases be taken to court seeking justice for their honour and dignity.
A simple question for the issue of defamation whether the decision of the Court of Appeal is correct or not? Or in simple words: is defamation a crime or not in Timor-Leste? This question will be weighed having regard to the legal bases and also by making a simple analysis of the defamation issue.
Before making a little analysis into this issue, I would like to bring you back to the trial case of a militia member in 2004. The case was Prosecutor vs Armando dos Santos. The Dili District Court (presided over by some Timorese Judges) sentenced the defendant Armando dos Santos based on the Indonesian Penal Code. At that time the prosecution also ‘used’ articles stated in the Indonesian Penal Code to charge Armando dos Santos.
When the case was appealed to the Court of Appeal, Claudio Xinemes who was the presiding judge used the Portuguese Penal Code to sentence the defendant Armando dos Santos.
Immediately a conflicting law was created at that time. Who was wrong?
Luckily, the National parliament immediately intervened and made an interpretation of the UNTAET Regulation 1/1999 where it says that: the subsidiary law applicable in Timor-Leste is the Indonesian law and “not” Portuguese laws. Lastly, the interpretation for the subsidiary law became clear, and the Court of Appeals’ Judge Claudio Ximenes, interpretation was completely wrong!
Now how about another decision of Judge Claudio Ximenes to interpret the issue of defamation in Timor-Leste? As for the interpretation of Judge Claudio Ximenes of the “executive order” saying that its level or category is not the same as law, is it right or wrong?
The resolution of The Security Council to establish UNTAET
I would like to invite you all to go back to the UNTAET mandate immediately after the restoration of Timor-Leste’s independence on 20th May 2002.
Security Council resolution number 1272 empowers UNTAET with the following three powers: a) legislative power, b) executive power, and c) judicial administrative powers.
These 3 powers were given to the special representative of the secretary general of the United Nations in Timor-Leste who was at the time the late Sergio Vieira de Mello. The late Sergio Vieira de Mello was the representative of the United Nations with great powers given by the “Security Council. The Security Council which created all international instruments, which many countries ratified and implemented in the whole world, all have come from the Security Council of the United Nations. Like the Universal Declaration of Human Rights and all the international conventions ratified by Timor-Leste, they became an instrument higher than the normal law of each individual country.
The Constitution of Timor-Leste provides, inter alia, as follows:
Article 9
(International law)
1. The legal system of East Timor shall adopt the general or customary principles of international law.
2. Rules provided for in international conventions, treaties and agreements shall apply in the internal legal system of East Timor following their approval, ratification or accession by the respective competent organs and after publication in the official gazette.
3. All rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid.
The provisions of paragraphs (1) and (2) of Article 9 are very clear. That is why when international conventions and treaties have been approved, ratified or adhered to and that has been published in the Official Gazette (Jornal da Republica), they have the force of law in the country. Therefore, laws or decrees laws that the Parliament or Government have made must be in harmony with the spirit of international conventions, as well as with the Constitution. We have an obligation to bow and to follow the order that the international instruments have constituted because we ourselves have a commitment when we wanted to ratified these international instruments.
Let’s go back to the issue of the Resolution of the Security Council in regards to UNTAET. During the UNTAET time, Timor-Leste was not yet a nation. It did not have its own sovereignty. We were in a transitional phase. Because of this, one of UNTAET’s mission objectives was to establish a Constituent Assembly to prepare Timor-Leste’s Constitution for the Republic (currently in use) as well as independence. This shows the depth of the powers that were given by the Security Council to UNTAET. They came from highest organs of the United Nations.
With these three powers bestowed on the late Sergio Viera de Mello as the Transitional Administrator, he was the head of executive, legislative and judicial administration powers during the UNTAET time.
Simply speaking, the late Sergio Viera de Mello alone was the “legislator”, executive or head of the transitional Government, and was also to oversee judicial administration.
With these powers or duties as the legislator, all the UNTAET Regulations and other law-making instruments needed was his signature. In addition, UNTAET did not differentiate the legal norms issued by UNTAET. Whether they were in the form of regulations, executive orders, directives or notifications, they all emanated from the same source of power. Furthermore, there was no UNTAET law that declared a hierarchy of laws at different levels of legal force and power.
It was only after independence that we made a law regarding the sources of the law. Law number 10/2003 on the interpretation of Article 1 of Law no. 2/2002 of the 7 August on the Sources of the Law provides:
Section 2
Sources of law
1. Legislation is the only immediate source of law in Timor-Leste.
2. Legislation is generic provisions issued by the competent organs of the State;
3. The sources of law in the Democratic Republic of Timor-Leste are:
(a) The Constitution of the Republic;
(b) Laws emanated from the National Parliament and from the Government of the
Republic;
(c) Subsidiarily, regulations and other legal instruments from UNTAET, as long as these are not repealed, as well as Indonesian legislation under the terms of section 1
of the present law.
It can not be disputed that the term “legal instruments” in Article 2(c) includes executive orders and all other law-making instruments issued by UNTAET under the hand of the late former Transitional Administrator. They were all laws for all purposes.
What was the position of UNTAET in regard to defamation?
The objective of the executive order 2/2002 issued by UNTAET was to avoid defamation being considered as a criminal offence then and now.
The Indonesian Penal Code has been applied since the start of UNTAET, (and it has been applied up until this very minute) as a subsidiary law. In the opinion of UNTAET, the articles in the Indonesian Penal Code starting from article 310-321 regarding defamation could not be applied in Timor-Leste because was against human rights principles and also contrary to civil and political rights. That is why executive order 2/2002 states that:
With immediate effect, the conduct defined in Chapter XVI (Defamation) of the Indonesian Penal Code, which consists of Articles 310 to 321, is of non criminal nature in East Timor. Under no circumstances those articles can serve as a basis for any criminal accusation by the Prosecutor-General. People allegedly defamed are limited to civil actions and only to where such repairs can be provided in a future UNTAET Regulation).
The Transitional Administrator’s powers were plenary and certainly extended to altering the applicable Indonesian law as this Executive Order does. The alteration did not have to be in any particular form such as a regulation.
What does our Constitution of the Republic says about the laws and norms issued by UNTAET? Also, what does the Constitution says about “defamation”?
Article 9.3 of the Constitution states that all rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid.
So, those norms that have been approved by the Parliament or by the Government must be harmonised so as not to contravene any international convention or agreement. They must not be applied without being so harmonised. So the question is does the law as interpreted and applied by the Court of Appeal really follow the spirit of the Constitution and the international conventions that have been ratified?
The same goes for the executive order which was issued during the time of UNTAET on the 22 March 2002: is it still applicable or not? ? Section 165 of the Constitution provides that:
(Previous Law)
Laws and regulations in force in East Timor shall continue to be applicable to all matters except to the extent that they are inconsistent with the Constitution or the principles contained therein.
One thing the Constitution wants to say here is that the laws and regulations currently in use in Timor-Leste continue to be applicable, as long as they have not been amended or revoked. The laws and regulations referred to are the Indonesian laws as the subsidiary laws and also the Regulations issued by UNTAET. Legal diplomas or regulations or all laws which applied after the 22 March 2002 continue to be applicable only for so long as there has not been a written amendment, or it has been revoked or voided by the Tribunal or the Parliament. The decision of the Court of Appeal on the defamation issue was only for that case which at that time was before the court. The Court of Appeal is yet to issue a “special” decision to specifically deal with the “executive order” and so the Court of Appeal has not “voided” that executive order. Nor has the Parliament revoked or amended by publication in the official Gazette. Only the Court of Appeal and the Parliament can “void” or “revoke” or “amend” any laws so that means that the executive orders and legal diplomas which have not been repealed, are still applicable.
This means that defamation can not be processed as a criminal action, it can only be prosecuted as a civil action. The executive order decriminalized defamation.
Impact of erroneous jurisprudence regarding the defamation issue
On the 20th May 2002 Timor-Leste became an independent sovereign nation. At the same time, Timor-Leste became a member of the United Nations and began to ratify conventions and international instruments that were important. Since these conventions are ratified Timor-Leste is obliged to submit an annual report to the United Nations regarding the implementation of these conventions.
The issue of defamation will be the topic in the national debate in Timor-Leste with ideas for or against it and will be highly criticised in the international forums. Since 2002 to 2009, the question of defamation is continuously raised and has became like a “virus”, because there are many who do not agree with these norms. Some believe that in the current situation, the criminalization of defamation favors more those in power than a Timorese citizen or a citizen of another country. This year, 2009, a member of the current government is taking court action against a local journalist. That Minister is alleging defamation and this has been a interesting topic for people in Timor-Leste and specially for people abroad. The President of the Republic in his official visit to New Zealand a few month ago was met with a protest from journalists who follow the daily political situation in Timor-Leste. Many people have started to send letters of concern to the government and the President of the Republic.
More important, the implementation report of the conventions which Timor-Leste so bravely ratified since 2002, will be heavily criticized and there may even be a possibility that some people may take this case to the Human Rights session in Geneva if the government does not give serious attention to this matter. (Every year individuals or groups can make interventions in Geneva regarding violations of human rights and violations of legal civil and political rights). All conventions which Timor-Leste has ratified forbid any violations of the people’s democratic rights.
Conclusion
The executive order issued by Sergio de Mello was based on the powers received from the resolution of the United Nations Security Council to establish UNTAET. Immediately after the restoration of independence of Timor Leste, UNTAET Regulations, Directives, Executive Orders and Notifications, issued by UNTAET were based on these powers.
As a member of the United Nations, Timor-Leste has made various agreements with the United Nations through the ratifications of international conventions. As a consequence, Timor-Leste must bow and comply with the commitments made with the United Nations to implement these conventions properly. If these conventions are not properly implemented, Timor-Leste is in violation of the principal “pacta sunt servanda” which is universal. The principal “Pacta sunt servanta” (Pacta sunt servanta comes from Latin; in Indonesian: “jandi harus ditepati”.)
In the Vienna Convention on the Law of Treaties, 1969, Preamble 3, this principal is also stated in Article 26:
“Every treaty in force is binding upon the parties to it and must be preformed by them in good faith)”.
All parties (the countries) can not use internal norms as reasons for failing to the implementation as stated in the treaties. These provisions can be found in the principal that talks about “peremptory norm of general international law” (or jus cogens). Normally this principal is more connected to issues of civil agreements. However, the legal system in Timor-Leste is “civil law system/sistema civilista” and that is why we have a great obligation to bow and to follow the international norms that we have signed with commitment.
Published in the East Timor Law Journal on 13 April 2009
