Saturday, 19 May 2012
East Timor: Internal Security, States of Seige and Emergency: A Note on the Constitutional Provisions and the Internal Security Law of 2003
The recent disintegration of the rule of law in East Timor might be characterized as a serious disturbance to the constitutional order and authorize the declaration of a state of siege or emergency.
When may a state of siege be declared?
In East Timor, a state of siege (or a state of emergency) can be declared “as provided for by the Constitution”. The Constitution provides that a state of siege shall only be declared in case of:
1.effective or impending aggression by a foreign force;
2.serious disturbance or threat of serious disturbance to the democratic constitutional order; or
If a state of siege or emergency is declared, the declaration must be substantiated, specifying rights, freedoms and guarantees the exercise of which are to be suspended. It may only last for 30 days subject to the possibility of justified renewal when strictly necessary, for equal periods of time and in no case may it affect the right to life, physical integrity, citizenship, non-retroactivity of the criminal law, defence in a criminal case and freedom of conscience and religion, the right not to be subjected to torture, slavery or servitude, the right not to be subjected to cruel, inhuman or degrading treatment or punishment, and the guarantee of non-discrimination.
Constitutional normality must be restored by the authorities as soon as possible. [Article 25 Constitution of the Democratic Republic of East Timor unofficial English translation]
Who has the constitutional authority to declare a state of siege?
The Constitution declares that the President is the guarantor of national independence and unity of the State and of the smooth functioning of democratic institutions as well as the Supreme Commander of the Defence Force. [Article 74]
It confers on the President, inter alia, the exclusive following competencies:
1) to exercise competencies inherent in the functions of Supreme Commander of the Defence Force; and
2) to declare the state of siege or the state of emergency following authorisation of the National Parliament, after consultation with the Council of State, the Government and the Supreme Council of Defence and Security. [Article 84]
While the Government has the constitutional competency to propose to the President the declaration of the state of siege or the state of emergency [Article 115(2)(c)], the National Parliament has exclusive competency to make laws on, inter alia, the suspension of constitutional guarantees and the declaration of the state of siege and the state of emergency. [Article 95(2)(n)].
Ultimately, it seems that it is the Permanent Standing Committee of the National Parliament, presided over by the Speaker and comprised of Deputy Speakers and Parliament Members designated by the parties sitting in the Parliament in accordance with their respective representation that has the constitutional authority to authorise the declaration of the state of siege or the state of emergency. [Article 102(2)(g)]
Accordingly, while it is the President who has the power to declare a state of siege or emergency, he may only do so following the authorization of the declaration by the permanent Standing Committee of the National Parliament.
It does not appear that any such authorisation has been forthcoming from the Parliament. In these circumstance, then, it is necessary to consider President’s position as Supreme Commander of the Defence Force.
Is a declaration of a state of siege necessary for the President to exercise powers as Supreme Commander of the Defence Forces?
The Prime Minister has asserted that the assumption of responsibility for internal security by the President is not in accordance with the Constitution and that the Government retains responsibility for internal security. If there has been no authorization of a state of siege by the Parliament, then it is not constitutionally possible for the President to declare a state of siege or emergency.
However, it should be noted that a declaration of a state of siege is not necessarily prerequisite to the exercise of the powers of the President as the Supreme Commander of the Defence Force. The Constitution does not expressly require the declaration of a state of siege or emergency as a precondition to the exercise of the powers of the Supreme Commander of the Defence Forces. As noted above, the Constitution confers on the President the exclusive competency inherent in the functions of Supreme Commander of the Defence Force. These are fairly unequivocal words and in the absence of other express constitutional restrictions on the President’s competency in this regard, the inherent powers of the Supreme Commander of the Defence forces might be further understood by reference to the provisions concerning the Defence Force.
Article 146 provides that the Defence Force “shall guarantee national independence, territorial integrity and the freedom and security of the populations against any aggression or external threat, in respect for the constitutional order.” The role of the Defence Force is not limited to external threat but extends to the security of the population against any aggression in respect of the constitutional order. Clearly, the Defence Force has a role in internal security. Further, the Defence Force “shall be non-partisan and shall owe obedience to the competent organs of sovereignty in accordance with the Constitution and the laws, and shall not intervene in political matters.” In relation to its obedience, who other than their Supreme Commander, does the Defence Force owe obedience?
If the Defence Force has a legitimate role in internal security and owes obedience to the President as the Supreme Commander in the securing of the population against any aggression in respect of the constitutional order, then it may be that the President does not need the declaration of a state of siege or emergency to assert himself as entirely responsible for internal security in such cases.
Internal Security, the National Police and the Defence Force: The Constitution and the Internal Security Law
In the context of the present disintegration of the rule of law in East Timor, it is instructive to consider other relevant provisions of the Constitution and of the Internal Security Law of 2003.
The National Police also has a constitutional role in internal security. Article 147 provides that “the police shall defend democratic legality and guarantee the internal security of the citizens, and shall be strictly non-partisan”.
Under the Internal Security Law [Law No 8 of 2003], “internal security” is defined as “the task performed by the State in order to ensure public order, security and tranquility, to protect people and assets, to prevent crime, and to contribute towards ensuring the normal functioning of the democratic institutions, the exercise of the fundamental rights and freedoms of the citizens and the respect for democratic legality”. This task is to be performed under the terms of criminal and procedural law, the police law, the law on security services, and other relevant legislation. The intermingling of the police and the defence force responsibility for internal security under the Constitution and the Law on Internal Security blurs the roles and functions of these two institutions and makes it difficult to determine who had primary responsibility for internal security. In any event, as the present disintegration of the rule of law involves the unleashing of illegal violence between the defence force and the police, these provisions have been rendered meaningless.
Article 6 of the Internal Security Law requires that the police and the defence force must cooperate with each other through the reciprocal transmission of data that is required to fulfill each other’s purposes. In addition, Government Decree Law No 7 of 2004 on the Organic Structure of the Defence Force, similarly provides that in a crisis situation, which shall be declared by the Government, together with the President, when there are serious or widespread disruptions of public order which may cause imminent institutional instability but do not justify immediately declaring a state of siege or a state of emergency, the Defence Force must, in respecting the rights of citizens and at the same time quickly restoring the peace that was threatened, assist the PNTL and other civil authorities under the terms defined in the declaration of crisis. [Article 18 Decree Law No 7 of 2004].
Article 8 of the Internal Security Law further provides that it is incumbent upon the Government to conduct the internal security policy and upon the Council of Ministers to define guidelines for the government’s internal security policy, to plan and ensure the means required to execute the internal security policy; and to approve the coordination and co-operation plan of the forces and services that are legally responsible for internal security and ensure the regular functioning of their respective systems. An Inter-Ministerial Committee on Internal Security is to assist the Prime Minister in the exercise of his or her competencies; notably in the adoption of the necessary measures in situations of serious threat to internal security. But the adoption of the necessary measures in situation of serious threats to internal security can only be effected in conjunction with the President as the Supreme Commander of the Defence Force since the Prime Minister has no express constitutional authority over the Defence Force.
The President may not declare a state of siege or emergency without the authorisation of the National Parliament. However, in the absence of an authorized declaration of a state of siege or emergency, the inherent powers of the President as the Supreme Commander of the Defence Force might nevertheless justify presidential authority for internal security; subject to the provisions of other constitutional laws regulating internal security. Since the Constitution and the operation of those other laws are predicated on the cooperation and coordination between the Defence Force and the National Police, and calling to mind that these institutions are at the core of the present state of violent conflict in East Timor, as well as the fact that the Government is not practically capable of achieving the restoration of the rule of law, then the President’s unilateral assumption of responsibility for internal security as the Supreme Commander of the Defence Force appears justifiable. Whether it is effective, having regard to the fact that members of the Defence Force appear to have committed atrocities against the police and is not under the effective control of its Supreme Commander, remains to be seen.
W. Wright BA LLB
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