Wednesday, 23 May 2012
The Regulation of Martial Arts in East Timor: An Overview of Law No 10 of 2008 on the practice of martial arts
A survey of gangs and youth groups in the capital city of East Timor in 2006 provides a brief history of the problem of gang violence in the city and throughout the countryside.(1) According to this survey, communal violence and gang warfare, in particular between rival martial arts groups, have long been present in East Timor. Gangs and militias were deployed as a means of repression throughout both the Portuguese and Indonesian periods. In the post-independence era, there have been persistent clashes between gangs that have presented a chronic problem for the rule of law. The survey reported the existence of between 15 and 20 martial arts groups with a registered membership of 20,000 – almost all of whom are young males.
The alignment of some martial arts groups with political factions fed into and escalated the disintegration of law and order in 2006 and the infiltration of these groups into the security forces has further exacerbated the problem. The link between political parties and some of the gangs is well established, although few are willing to talk about it openly, let alone acknowledge that politicians have paid young people to commit crimes. PSHT (Persaudaraan Setia Hati Terate – Lotus Faithful Heart Brotherhood) originated in Indonesia, and has branches in most of East Timor's districts. The gang is widely perceived as being close to the Democrat Party and the Social Democratic Party, and is believed to have heavily infiltrated the security forces. PSHT is also in open rivalry with another martial arts group, Korka, aligned with Fretilin, the country's main political party. It is not that the political parties have formal links with the youth gangs but there are, for example, some important Korka leaders in Dili who are also Fretilin members. At the local level, there are also members of Korka who are members of Fretilin.
Senior members of the East Timor National Police (PNTL) are also members of or control gangs. A key problem with the PNTL is that some of its members moonlight for the gangs, for political parties, or for other groups which command a higher degree of loyalty than the institution of the national police force. For example, the Baucau PNTL district commander was allegedly a member of the Kera Sakti martial arts group which is battling PSHT (who, on the other hand, apparently count a local PNTL sub-district commander as a member in their ranks) for dominance in the city.(1A) Former Dili police district commander, Abilio Mesquito ("Mausoko"), is also suspected of being a member of PSHT and actively particpated in the 2006 violence. Mesquito was jailed for his part in an attack on the residence of F-FDTL Commander Taur Matan Ruak's during the 2006 crisis.
In an effort to address the social problem of gang-related violence, the Parliament of East Timor enacted Law No.10/2008 of 16 July on the practice of martial arts. This law was approved by the Parliament on 23 June 2008 and promulgated by the President on 4 July 2008. Published on 16 July 2008, the statute came into force 60 days subsequently; namely, on 14 September 2008.
The preamble notes with concern the dangerous nature of martial arts techniques and the connection between the practice of martial arts in East Timor and an increase in criminality and violence which compelled the creation of a regulatory framework to ensure the principles of public order and respect for the rights, freedoms and guarantees of citizens. The statute is directed to the need to regulate existing martial arts associations and training centres and to discourage activities “devoid of a proper legal framework”. It sets out a scheme for the regulation by the state of martial arts in East Timor.
The law sets out provisions for applying disciplinary sanctions, including the criminalisation of individuals or corporate bodies practising, teaching, learning, or inciting the practice of such activities without proper authorisation, the creation of a Martial Arts Regulatory Commission, requirements for legitimate martial arts institutions to operate, and an exemption from these requirements for the security forces.
Definition of Martial Arts, Centres, Clubs or Schools
Martial arts are defined in the law as “techniques consisting of traditional, native and cultural practices memorised routinely or by training standards, many a times identified as sport modalities and accompanied with combat training, as well as the creative bodily movements introduced in such techniques which, given their dangerous nature, are to be considered to be similar”.(2)
Centres, clubs or schools intended for the practice of martial arts are entities or groups of citizens whose common objective is to promote and organise physical activities for the learning and training of martial arts techniques with sporting, formative, ludic, social or defensive purposes of the practitioners.
Under the statute, the establishment of martial arts centres, clubs or schools and the teaching and practice of martial arts may only be undertaken with prior authorisation from the Martial Arts Regulatory Commission (MARC).(3) In addition, the aforementioned martial arts institutions must be established as non-profit civil associations under Decree Law No 5/2005 on Non-Profit Corporate Bodies and are prohibited from integration or association in any manner whatsoever with political parties.(4)
In applying for authorisation, in addition to the fulfilling the requirement of Decree Law No 5/2005, the institution must identify the premises from which they operate and designate at least one manager for each 50 members of the institution. A manager must produce a civil identification card, a criminal record certificate, a medical certificate attesting to their physical and mental fitness to teach martial arts, certified evidence of experience in the relevant art and must be at least 21 years of age.(5)
MARC may only issue authorisation to teach and practice the martial art if the relevant individual is physiologically fit and offers guarantees of moral and civic maturity in respecting the established social order.
Accordingly, persons who have been sentenced for committing crimes against the State, the public order, life, physical integrity or personal or sexual freedom are ineligible.(6) It is incumbent on the institution to evaluate the fitness of their practitioners and a register of practitioners must be maintained by the institution.(7)
The Martial Arts Regulatory Commission (MARC)
The MARC is established by Article 7 of the law as an administrative unit of the Secretariat of State for Youth and Sports. It is comprised of 4 members and a Chair who represents and is appointed by the Secretariat of State for Youth and Sports. The remaining members are comprised of one representative of the Ministry of Justice, one representative of the Ministry of Education, and two representatives of the centres, clubs or schools of martial arts elected by the latter.
MARC is empowered to:
a) Examine and provide opinions on requests of authorisation for the establishment of centres, clubs and schools intended for the practice of martial arts;
b) Cancel authorisations already granted for the establishment of centres, clubs or schools intended for the practice of martial arts;
c) Endorse the choice of the managers of centres, clubs and schools of martial arts as well as the election of their representatives in the Regulatory Commission;
d) In cooperation with the centres, clubs and schools provide guidance to the respective programmes of activities as well as technical assistance through technical advisers;
e) Issue directives on dissemination, teaching, learning and practice of martial arts;
f) Monitor the activities of the centres, clubs and schools of martial arts as well as the practice of related modalities;
g) Initiate and decide on disciplinary proceedings;
h) Establish the set-up of sub-commissions at the district level for the exercise of its competencies; and
i) Propose to the Secretariat of State for Youth and Sports the appropriate measures for the execution of the statute and the respective regulatory norms.(8)
Decisions of MARC are subject to the endorsement of the Secretariat of State for Youth and Sports, and any appeal thereof shall be filed with the Council of Sports Ethics, pursuant to provisions to be defined by the basic law on sports.
A District-based sub-administration of MARC is also provided for in Article 8 and the competencies enumerated in sub-paragraphs (a), (f) and (i) may be assigned to suco (village) chiefs.
Violations of the provisions of the law or any directives of MARC may result in disciplinary proceedings that are initiated by MARC and that are “without prejudice of the same juridical fact or illicit conduct constituting simultaneously a criminal offence, with the subsequent establishment of a criminal proceeding.”(9)
The law goes on to provide in Article 10 that “the list of conducts susceptible of constituting disciplinary offences and the respective disciplinary proceeding shall be the object of a specific regulation to be prepared by the Regulatory Commission and approved by the Secretary of State for Youth and Sports.”
This is an unfortunate provision is so far as it appears to confer an ultra vires power on an administrative agency to determine criminal conduct. In general, crimes must be defined in a penal statute with appropriate certainty and definiteness. It is a violation of general constitutional and legal principles for the definition of criminal behavior to be vested in any other entity other than the legislature or the courts. Particularly, the determination of what constitutes a crime by an executive agency is symptomatic of a dictatorship rather than a democracy.
Article 11 sets out the disciplinary sanctions that may be imposed on martial arts institutions under the law which penalties are:
b) Fine up to a maximum of US$2,000;
c) Suspension of activity up to a maximum of 4 years;
d) Closing of activity.
Instructors, managers and practitioners may be subject to the following disciplinary sanctions:
b) Fine up to a maximum of US$ 200;
c) Suspension to practice martial arts up to a maximum of 2 years;
Cumulation of Offences
Article 12 provides for cumulation in relation to offences. Thus, where the same facts constitute simultaneously a disciplinary offence and a criminal offence pursuant to the Criminal Code, the perpetrator shall be punished as a criminal offender, without prejudice to the application of sanctions for disciplinary offences.
The teaching, learning or practice of martial arts for committing acts susceptible of constituting a criminal conduct shall be considered an aggravating circumstance and the perpetrator shall be punished with the penalty applicable to the respective crime as aggravated by one third of its minimum and maximum limits.(10)
Any person who, after being warned by a legal authority that his or her conduct is contrary to the statute, teaches, learns, or practices any modality of martial arts outside of the facilities duly authorised and certified by the centres, clubs or schools for
such purposes commits the crime of disobedience.
Any person who, after being warned by a legal authority that his or her conduct is contrary to the present statute, explores, manages, or otherwise maintains facilities for practicing or teaching martial arts without being legally authorised commits the crime of qualified disobedience.(11)
Military and Police Exempted from Operation of the Statute
The teaching, learning and practice of any modality of martial arts by members of the defence force or the police in the framework of the exercise of their functions and in harmony with instructions approved by the superiors of those institutions are not governed by the juridical regime provided for in the statute.(12)
Article 17 provides that martial arts institutions in existence and operational as at the date of entry into force of the statute were granted 120 days to regularise their status with the Secretariat of State for Youth and Sports and the competences of MARC shall transitorily be exercised by the Secretariat of State for Youth and Sports until such time as the Government decree determining the establishment and the statutes of the Regulatory Committee is approved.
1. A Survey of Gangs and Youth Groups in Dili, Timor-Leste: A Report Commissioned by Australia’s Agency for International Development (AusAID) 15 September 2006. Research: James Scambary Research Assistants: Hippolito Da Gama Joao Barreto.
1A. See further Timor Leste – A Kaleidoscope of Conflicts Notes from a visit to Timor Leste and West Timor, October-December 2007 By Henri Myrttinen.
2. Article 1(a).
3. Articles 2, 4.
4. Article 3.
5. Article 4.
6. Article 6(2).
7. Article 6(3), (4).
8. Article 8.
9. Article 10.
10. Article 13.
11. Articles 14, 15.
12. Article 16.
© Warren L. Wright BA LLB. Sydney 6 January 2008
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