tag:blogger.com,1999:blog-4441593467864724337.post8519806220843462389..comments2024-03-28T20:00:44.639+11:00Comments on East Timor Law and Justice Bulletin: Penal Code provisions on defamation threaten democracy in Timor-LesteEditorhttp://www.blogger.com/profile/14359692951995091025noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-4441593467864724337.post-76166308996307612712013-03-12T12:55:20.425+11:002013-03-12T12:55:20.425+11:00Thank you for this incisive analysis of this issue...Thank you for this incisive analysis of this issue. It is very helpful to have some informed observations on this vexed question and to have some clarity about the central legla issues.<br /><br />I would be very happy to publish your comments as a separate post if you would like to appear as a guest poster on the ETLJB. Please let me know if you would like to do that by using the Contact Us form. You could remain anonymous if you wished for that purpose.<br /><br />Thanks again and best regards,<br /><br />Editor<br />ETLJBWarren L. Wrighthttp://easttimorlegal.blogspot.comnoreply@blogger.comtag:blogger.com,1999:blog-4441593467864724337.post-84711658146344998452013-03-12T11:36:18.034+11:002013-03-12T11:36:18.034+11:00While I share concern over criminalizing defamati...While I share concern over criminalizing defamation and question why it needs to be a criminal issue rather than a civil one, having defamation criminalized is not in and of itself a threat to democracy. It is how the legal provisions are drafted, used, interpreted, and ultimately applied in the justice system, remembering that truth is always the ultimate defence. That said, before making an argument either way, the actual Penal Code provision in question must be analyzed. <br /> <br />Article 285 on Defamatory false information has a number of mens rea elements place a heavy burden on the prosecution which in practice should be very difficult to prove - though a complaint can always be made as a semi-public crime, and investigated and charged or dismissed depending on any findings. <br /><br />Parsed, article 285 states: <br />1. Any person who, by any means, <br />-before authorities or publicly, <br />-and aware of the falsity of the accusation, <br />-informs or casts suspicion on a certain person regarding commission of a crime, <br />-with the intent of having criminal proceedings initiated against said person, <br />·is punishable with up to 3 years imprisonment or a fine.<br /><br />The criminal action (actus reus) required is to publicly/before authorities inform or cast suspicion on someone regarding the commission of a CRIME (not anything else, but a CRIME, as defined by the Penal Code). <br /><br />The mental element (mens rea) requires that the person be aware that they are giving false information (meaning knowingly/intentionally rather than inadvertently or recklessly) of the falsity of the accusation AND with the intent of having criminal proceedings initiated against the denounced person (meaning the information is shared to see the person prosecuted, rather than just publicly shamed/ridiculed).<br /><br />Considering the difficulties of proving the multiple and fully inclusive elements (all must be present, not just 1, 2, 3, but all 4), this seems like a very difficult article to investigate and apply. Baseless accusations can always be made, and police may be directed to investigate by the Prosecution; however without the ability to prosecute effectively, the threat, or chilling effect, on journalists seems minimal. Clearly the very public legal issue with journalists reporting on alleged corruption by the now-convicted past Minister of Justice did not deter the two journalists in this case. We can probably rest assured that democracy is not threatened with destruction simply because this article in the Penal Code exists...Anonymousnoreply@blogger.com