Saturday 19 May 2012

SHORT ANALYSIS OF STATUS OF UNTAET EXECUTIVE NO 2 OF 2002 ON THE DECRIMINALISATION OF DEFAMATION IN EAST TIMOR

Original Citation: 2004 ETLJ 08  SHORT ANALYSIS OF STATUS OF UNTAET EXECUTIVE NO 2 OF 2002 ON THE DECRIMINALISATION OF DEFAMATION IN EAST TIMOR

Introduction
This executive order, No 2000/02 on the decriminalisation of defamation came into force on 07 September 2000. It provided that the conduct defined in Chapter XVI (Defamation) of the Indonesian Criminal Code, comprising articles 310 through 321, is of non-criminal nature in East Timor.

It further provided that “under no circumstance may said articles be the basis for criminal charges by the Public Prosecutor. Persons allegedly defamed shall be limited to civil actions and only to the extent that such remedies may be provided in a future UNTAET Regulation.”

Finally, it provided that these provisions “shall apply to all pending proceedings in East Timor, regardless of the time of any alleged offense.”

The question has risen in relation to the status of this Executive Order now that East Timor is an independent and sovereign State.

Following independence, on 28 June 2002, the National Parliament of the Democratic Republic of East Timor enacted Law No 1 of 2002 entitled “Publication of Acts”. Amongst other things, this law, in Section 20, defines that status of legislative acts passed by the Transitional Administrator during the UNTAET administration of East Timor in the following way:

Acts of the United Nations Transitional Administration in East Timor

1. Regulations of the United Nations Transitional Administration in East Timor (hereinafter UNTAET) in force on 19 May 2002 and approved by the Constituent Assembly shall have the same value as laws.

2. Other UNTAET regulations in force on 19 May 2002 shall have the same value as Government decrees.

3. UNTAET directives in force on 19 May 2002 shall have the same value as ministerial legal instruments.

4. Executive orders and notifications issued by UNTAET and in force on 19 May 2002 shall have the value derived from their nature.

By sub-section 4 of Article 20, particularly through the use of the words “value derived from their nature”, the status of all Executive Orders is unclear and, therefore, a reasonably high degree of uncertainty has been created in relation to the status of Executive Orders generally in the post-independence era. The status of Executive Orders may be anything from that of equivalence to a law through to equivalence of a ministerial regulation. It is not clear that Executive Order No 2 of 2002 has rendered a permanent amendment to the Criminal Code provisions on the criminality of defamation. Only an interpretation by the Courts or further legislation can settle the true status of these Executive Orders.

Because of this uncertainty, a prudent assumption would be that the executive orders have not been accepted by the post-independence legal order as having rendered permanent changes to the legal regime.

The drafting of Executive Order No 2 of 2002, like so much other UNTAET legislation, leaves much to be desired. In this instance, the Executive Order does not make it abundantly clear that the decriminalization of defamation was intended to be a permanent amendment applying to all past, present and future defamatory actions. Although it begins with a general statement decriminalizing defamation, the second paragraph does not state this applies to all past, pending and future proceedings in relation to defamation. Indeed, the second paragraph, in defining those actions to which the decriminalization provisions of the first paragraph of the Order applies, states that it only applies to “all pending proceedings in East Timor, regardless of the time of any alleged offense”. The limitation that can be inferred from the use of those words is that the provision does not apply to future proceedings.

In order to remove this uncertainty, further legislation is required.


Warren L. Wright BA LLB
Dili, 03 May 2004


Exerpt from Council of Minister Meeting on 07 May 2004 relating to the East Timor Government's policy on defamation.

07 May 2004 East Timor Council of Ministers Considers Recriminalisation of Defamation in East Timor

At the 72nd meeting of the East Timor Council of Ministers on 07 May 2004, the following decision was made in relation to the recriminalisation of defamation in East Timor. The original text, in Portuguese, appears below.

Following the decision of 19 February 2004, the Council of Ministers renewed their discussions about the proposed law on the criminalisation of defamation presented by the Minister of Justice. This objective of the proposal is to end the sitation of impunity, for whoever commits defamation or injures someone’s repuation, and to reinstate the law set out in Articles 310-321 of Chapter 16 of the applicable Penal Code. The Council of Ministers approved the substantive part of the draft law, and decided to improve on the preamble.

No seguimento da decisão do dia 19 de Fevereiro de 2004, o Conselho de Ministros discutiu novamente a proposta de Lei sobre a Criminalização da Difamação, apresentada pelo Ministro da Justiça. Esta proposta visa pôr fim à actual situação de impunidade, para quem difama ou injuria e reestabelecer as normas previstas nos artigos 310 a 321 do Capítulo XVI do Código Penal vigente. O Conselho aprovou a parte substancial da lei, tendo decidido melhorar o preâmbulo.

This decision to reinstate the criminal provisions of the Indonesian Criminal Code relating to defamation will reverse the Executive Order No 2 of 2000 by the Transitional Administrator enacted during the United Nations Administration of East Timor that sought to decriminalise defamation.

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Index

2011

1. The Rule of Law: Theoretical, Cultural and Legal Challenges for Timor-Leste

2010


2009


2008


1. Justice for Serious Crimes Committed during 1999 in Timor-Leste: Where to From Here?

2. Joint Command for PNTL & F-FDTL Undermines Rule of Law & Security Sector Reform in Timor-Leste

3. Criminal Justice in East Timor and the Constitution of East Timor

4. Commentary on the Draft Arms Law in Timor-Leste

5. Deleted

2007

1. The Law on Political Parties (No 3/2004) & the Decision of the Timor-Leste Court of Appeal in the case of Vitor da Costa & Ors v Fretilin

2. Ethnicity, Violence & Land & Property Disputes in Timor-Leste

3. East Timor: Reconciliation & Reconstruction

4. Legal opinion on the appointment of the Prime Minister and the formation of Government in Timor-Leste

5. A legal opinion on the Formation of an Unconstitutional Government in Timor-Leste

6. Commission for Truth Friendship East Timor Competing Concepts of Justice

7. 25th of May 2006 Massacre & War Crimes in Timor-Leste

2006

1. Some Land Tenure Issues in Post-Conflict East Timor

2. Extradition from Indonesia to East Timor & the Serious Crimes Process in East Timor 1999 - 2005

3. East Timor: Internal Security, States of Seige & Emergency: A Note on the Constitutional Provisions & the Internal Security Law 2003

4. East Timor: The Constitutional Process Governing the Dismissal of the Government

5. Guidelines for Preparation of Outgoing Requests by East Timor for International Judicial Assisstance - Extradition Requests & Letters Rogatory - A Practice Manual

6. Roles of the President and the Prime Minister in the Current Constitutional Crisis in East Timor

7. Institutions & the East Timorese Experience

8. An Early Warning System for Timor-Leste: A Framework Concept of the Need & Possibility of an Early Warning System for the Timorese People

2005

1. The Timor-Leste Maritime Boundaries Case

2. Deleted

3. On the occasion of the International Conference on Traditional Dispute Resolution & Traditional Justice in Timor-Leste

4. General Facts on the Timor Sea & Facts on the Negotiations on a Permanent Maritime Boundary between Timor-Leste & Australia

5. Deleted

6. Morality, Religion & the Law: Abortion & Prosititution in East Timor

2004

1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992

2. UNTAET Land Policy


3. Some Observations on UNTAET Regulation No 27/2000 on the Temporary Prohibition on Transactions in Land by Indonesian Citizens

4. Sandalwood & Environmental Law in East Timor

5. Some Observations on the Report on Research Findings & Policy Recommendations for a Legal Framework for Land Dispute Mediation in East Timor

6. An Overview of East Timor's Law No 1 of 2003 on the Juridical Regime on Immovable Properties

7. Report on Research into Adat Land Law in East Timor

8. Short Analysis of UNTAET Executive Order No 2 of 2002 on the Decriminalisation of Defamation

9. An Overview of the Constitutional Drafting Process in East Timor

10. Some Notes on East Timor Government Decree No 1/2004 on the Orthographical Standard of the Tetum Language

11. UNTAET Guidelines for the Administration of Public & Abandoned Property by District Administrations

12. Tara Bandu: The Adat Concept of the Environment in East Timor

13. Finding Ways of Resolving Land Problems in East Timor