09 March 2013

Penal Code provisions on defamation threaten democracy in Timor-Leste

ETLJB 09 March 2013 - The provisions of the penal code are a threat to democracy in Timor-Leste according to the law and justice civil society organisation, the Judicial System Monitoring Program.

In a press release on 05 March 2013, JSMP said  that it believes “that the provision on slander in the Timor-Leste Penal Code will set a dangerous precedent and will threaten democracy in Timor-Leste because it will shut people up and stop them from revealing their suspicions about the misuse of authority involving government authorities.”

JSMP believes that although Article 285 of the Penal Code does not refer to ‘damaging the good name’; this article implies the same thing as the notion of tarnishing someone’s reputation [and that] this conflicts with the obligation of the government of Timor-Leste under Article 19 of the International Convention on Civil and Political Rights (ICCPR) and Article 41 of the Timor-Leste Constitution, that are intended to protect the right of every person to express their opinion without interference as well as to protect freedom of expression. The State should create a balance between protecting an individual’s reputation/privacy against a false accusation and the right to expression, especially the freedom of journalists to criticize government institutions.

The observations were made in relation to criminal proceedings against  3 people over a newspaper article questioning the handling by the public prosecution of a case involving a motor vehicle accident. On 28 February 2013 the Dili District Court tried the defendants MS, RO and OS who were accused by the public prosecutor of committing slander against the victim JBS. This case allegedly occurred on 31 December 2011 and 2 January 2012, when the defendants, who are journalists, published their article in the daily newspapers Suara Timor Lorosa’e and Independente.

The public prosecutor charged the defendants with committing the crime of slander in accordance with 285 of the Penal Code, for publishing an article in the daily newspapers STL and Independente, regarding the suspected involvement of the Oecusse District Prosecutor in a traffic accident. The incident allegedly occurred on 18 October 2011. The incident resulted in three family members of the defendant MS losing their lives and suffering serious injuries.

The Southeast Asian Press Alliance has also published an article about the case saying that the defendants, Raimundo Oki of the Independente and Oscar Maria Salsinha of the Suara Timor Loros’e, faced the accusations for writing separate articles about a district prosecutor in Oecuse district being suspected of receiving a bribe. The articles were published by the Independente on 2 February 2012 and by the Suara Timor Lorosa'e on 30 December 2011 . 

Oki and Salsinha faced charges of violating the Timor Leste Penal Code article 285 criminalising ‘slanderous denunciations’, which carries a penalty of three years imprisonment or compensation to the victim.

The case chronology read by the judge accused Oki and Salsinha of writing about a district prosecutor’s malpractice, which was allegedly not based on facts and has damaged his integrity.

Both journalists have countered that the news item was based on facts obtained from a news source.

The Dili district court is due to deliver a verdict on the case on 14 March.

The provisions of the defamation law have been deployed against journalists in East Timor before. The most notorious case was the attempt by the now-convicted and jailed former Justice Minister, Lucia Lobato, to sue journalists for publishing allegations of corruption against her - allegations that were subsequently established by the Dili Distict Court which sentenced Lobato to jail for 5 years for her crimes while in office.

Defamation had been a criminal offence in East Timor as a result of the application of Indonesian laws during the illegal annexation of the territory and the United Nations Transitional Administration passed an Executive Order decriminalising defamation and leaving it regulated a s a civil matter; as it is in most democracies. But it was re-criminalised under the Penal Code enacted after independence was restored.

See further
2009 ETLJ 4 Defamation - a Crime or Not in Timor-Leste? A Legal Analysis on the East Timor Law Journal
Lao Hamutuk Statement on the Defamation Case against East Timor's Media
East Timor Press Freedom and Defamation in relation to the Applicable Law
Criminal Defamation in East Timor - A Miscarriage of Justice
Short Analysis of UNTAET Executive Order No 2 of 2002 on the Decriminalisation of Defamation
Sources: JSMP Press Release 5/3/2013; Southeast Asian Press Alliance 01/03/2013; East Timor Law Journal; East Timor Law and Justice Bulletin. Edited by Warren L. Wright


Anonymous said...

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.

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.

Parsed, article 285 states:
1. Any person who, by any means,
-before authorities or publicly,
-and aware of the falsity of the accusation,
-informs or casts suspicion on a certain person regarding commission of a crime,
-with the intent of having criminal proceedings initiated against said person,
·is punishable with up to 3 years imprisonment or a fine.

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).

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).

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...

Warren L. Wright said...

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.

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.

Thanks again and best regards,