An attempt to reintroduce criminal defamation in this tiny democracy should be fought off at all costs, writes Jim Nolan.

The coronavirus pandemic has provided cover for a variety of authoritarian moves against free expression in the South East Asia region. In the Philippines, a full frontal attack on the free media has occurred with the Duterte government’s cancellation of the broadcasting licence of the country’s largest broadcaster - television network ABS-CBN.  In Malaysia the Communications and Multimedia Act (CMA) continues to be used to prosecute media workers who are reporting the pandemic despite the relevant minister’s commitment to review the act’s restrictions on press freedom. In Indonesia, access of journalists to West Papua is still restricted and political activists have been arrested and jailed.

To add to this litany of woes, on Friday, June 5, the Minister of Justice of Timor-Leste published a draft law proposing to re-introduce criminal defamation law. This is an especially troubling development since - alone among South East Asian nations - Timor-Leste abolished colonial era criminal defamation laws when its new Press Code was adopted back in 2014. Although the press law was not without its critics (for good reason), at least it was a cause for celebration that the scourge of criminal defamation had been removed from the statute books.

But this latest proposal was not put forward after a considered analysis of any deficiencies in the existing law. This might be expected where a law reform commission or similar body has cast an expert eye over the law with a view to sensible and measured reform. Rather, it bears all the hallmarks of a desire among those who resent Timor-Leste’s freedom and democratic achievements to wind these back.

The real basis for the apparent need sought to be addressed by the new bill is the existence and rise of social media. The paper argues that “‘since the adoption of the Penal Code in 2009, access to social media has become widespread in Timor-Leste, which today is less limited than it was then, and access to social networks has become widespread in particular through mobile devices.”

The paper says that ‘[t]hrough the media and social networks, the offences against honour, good name and reputation are amplified, and that amplification affects more seriously the dignity of those targeted, as well as the State, which is also responsible for ensuring their ‘dignity’. There is nothing in the draft law which differentiates between media generally and social media.

Timor-Leste suffered serial colonial wretchedness at the hands of Portugal and then Indonesia. The criminal defamation laws in both jurisdictions served no purpose apart from the suppression of democratic politics and freedom of expression.  In Indonesia, the adoption of the Press Law in 1999, with all its imperfections, was a decisive blow struck against the New Order government which had been the source of grievous oppression of Indonesian and the then-East Timorese citizens. It is breathtaking that such a state of affairs could be seriously proposed for reinstatement in Timor-Leste.

Regrettably, the formulation of the present criminal defamation proposal has all the appearances - and if adopted will surely have the effect - of turning the clock back to laws redolent of the era of Portuguese colonialism.

The grim irony of the proposal will be that if adopted, it will restore colonial era Portuguese-style laws when Portugal itself has long accepted that such laws as still exist in Portugal are subject to the overarching rights to freedom of expression underwritten and secured by Article 10 (2) of the European Convention on Human Rights, with recourse to the European Court of Human Rights. 

Although Portugal remains one of the few countries in Europe where defamation is still a criminal offence, Freedom House says prosecutions are uncommon, and that the European Court of Human Rights (ECtHR) has repeatedly ruled against Portuguese authorities for their handling of both civil and criminal defamation cases.

In February 2018, Portugal’s parliament adopted changes to the criminal code that granted journalists protected status. No such protections or safeguards accompany the Timor-Leste proposal.

In its brief reasons accompanying the bill, the Justice Department advances the grotesque justification for the bill as conferring ‘criminal dignity’ on the proposed offences which flow from the violation of inchoate rights to ‘honor, good name and reputation’. The reasoning apparently is that since, under section 36 of the Constitution, everyone has the right to honor, good name and reputation, a law criminalising ‘offences’ against these will confer ‘criminal dignity’ on those entitled to such rights. 

Quite what is meant by the conferral of ‘criminal dignity’ is not explained. Human dignity is what is normally protected by law in a civilised society.  Even allowing for the vagaries of translation, criminal dignity is a problematic concept.

This flies in the face of the consensus in the democratic world which regards criminal defamation laws as toxic, liable to gross abuse by the wealthy and well connected as well as being anti-democratic and anti-transparency.

The proposal is all the more curious since the legal system of Timor-Leste already provides for complaints against the media and journalists to be addressed by laws which do not criminalise free speech and publication.  Timor-Leste and its media have worked long and hard to establish a robust, effective and highly regarded Press Council.  Complaints against the media may be adjudicated by the Press Council, yet nowhere in the brief accompanying paper is the existence of this council even mentioned. It is also notable that Timor-Leste’s Press Council has also expressed its serious concerns about the present proposal.

Given the drift of the concerns embodied in the bill, it is not at all surprising that the real object of the concern is the impact upon - and this is no surprise - public office holders.  Such offences are apparently doubly stinging because the public office holders are not just affected personally but re dealt with in the paper as surrogates for the ‘democratic society as a whole’. 

Thus, the extension of draconian criminal libel is advanced under the pretence that it is all about the humble task of ensuring that citizens' honour, good name and reputation is dubious given the real world beneficiaries of this solicitude just happen to be politicians and high public officials. 

Recent experience in the region illustrates that the real effect of reforms of this kind will invariably be misrepresented. The law of unintended consequences will operate. In Indonesia, the Electronic Transaction Law, usually referred to as the ITE law, is a case in point.  Despite the warnings from the IFJ and its affiliate, the Alliance of Independent Journalists (AJI Indonesia), and many human rights and press freedom NGOs about the widespread draconian impact of the bill, the Minster at the time insisted that it was merely a technical measure designed to deal with electronic records or ‘e-commerce’. This claim very rapidly proved to be specious and the predictions of critics were vindicated within months of the enactment of the law. There is no doubt that the same will happen with this law if it is enacted.

Not content with this attempted root and branch reinstatement of a criminal defamation law already well and truly discredited in the democratic world, it is also proposed that corporations and dead persons will also be able to sue to protect their ‘honour, good name and reputation’. 

Far from representing ‘an additional step in the improvement of the Timorese legal system’ as the paper suggests, it represents a serious retrograde step which is out of keeping with modern notions of the rule of law, democracy and transparency.

Nobel Prize winner and former president Jose Ramos-Horta has already condemned the proposal, commenting that he has not seen the proliferation of social media affecting the security, peace or development of the country and the dignity or prestige of the government. 

It must be withdrawn.

Jim Nolan is the International Federation of Journalists’ pro-bono legal expert in the Asia Pacific.