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.