RESPONSE TO CRIMINALIZATION OF DEFAMATION IN NEW PENAL CODE

UNCLAS SECTION 01 OF 04 DILI 000035

SIPDIS

SENSITIVE
SIPDIS

DEPT FOR EAP/MTS AND DRL

E.O. 12958: N/A
TAGS: PHUM PGOV KPAO TT
SUBJECT: RESPONSE TO CRIMINALIZATION OF DEFAMATION IN NEW PENAL CODE


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Summary
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1. (U) Last month the Council of Ministers announced their
approval of a new penal code for East Timor. The law is now in
the hands of the President either to promulgate or to veto.
Although no official copies of the law are available, leaked
copies have been circulated among civil society organizations
and the diplomatic community. No other issue addressed in the
new law has received as much attention in recent weeks as its
inclusion of provisions criminalizing defamation. Members of
the media as well as other civil society organizations have
expressed their opposition publicly and a number are organizing
to lobby for its abolition from the final penal code. Embassy
sources indicate that criminalization of defamation is one of a
few key issues that President Xanana Gusmao is reviewing in
deciding whether or not to promulgate the law in its current
form. Ambassador Rees expressed concerns about the criminal
defamation provisions in a conversation with President Gusmao
this week. Although the next step --- expressions of concern to
the Government and/or members of Parliament --- should await the
President's decision on whether to sign or veto the bill, the
Embassy includes draft talking points which, unless directed
otherwise, we will use in private conversations on an if-asked
basis pending further developments. These talking points might
also provide useful background for a proposed January 24 meeting
between the Secretary and President Gusmao. The draft talking
points are set forth in paragraph 11. End summary.

Proposed code
--------------


2. (U) On December 6, 2005 the Council of Ministers announced
their approval of a new penal code for East Timor. Parliament
had in July 2005 authorized the Government to draft the penal
code as a decree law, thus bypassing the Parliamentary debate
and negotiation involved in the normal legislative process. The
new penal code is intended to replace the Indonesian Penal Code
that has continued to apply to date, albeit with some
modifications by UNTAET (United Nations Transitional
Administration in East Timor) regulations. The new law still
requires the President's signature in order to be promulgated
and the Constitution stipulates that he has 40 days from receipt
to either sign or veto the law. According to Embassy sources he
officially received it on December 27. The text of the law is
not publicly available and official Embassy requests to the
Council of Ministers for a copy have to date been denied.
However, the Embassy was able to obtain a copy of the
Portuguese-language document that was apparently leaked from the
Council of Ministers and has been circulated among civil society
organizations and the diplomatic community.


3. (U) The new penal code includes several provisions
criminalizing defamation and providing for punishment in the
form of prison sentences or fines. Defamation is broadly
defined as any expression (written, gesture, image or other
means) that is directed to a third person offending the victim's
"honor". Of particular concern is that the most severe
punishments are reserved for expressions concerning public
figures in the media. While the basic crime of defamation is
punishable by up to one year imprisonment, the same offense when
committed "by means of the media" and against persons
"performing public, religious or political duties" is punishable
by up to three years imprisonment. The law appears to allow for
no mitigating factors. In contrast to the Portuguese penal
code, on which it is purportedly modeled, it does not make
allowances for statements made in the public interest or in good
faith.

Response
--------------


4. (U) Response to the Penal Code's criminal defamation
provisions has been almost universally negative among
journalists and other members of civil society. The vast
majority of journalists see the criminalization of defamation as
a tangible setback in East Timor's democratic development,
describing it as a law written primarily to protect political
leaders from criticism. Discouragingly, there is a general
consensus among journalists here that the promulgation of this
law would result in a significant increase in self-censorship.
Many journalists already admit to practicing some measure of
self-censorship in their reporting on political issues and
comment that, with criminal defamation ensconced in national
law, they will have to go the "easy route" if faced with the

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prospect of imprisonment. In contrast, a number of the more
experienced journalists, while expressing concern that
self-censorship will come to pervade East Timor's media, state
that the law will not affect their own reporting. This group
primarily comprises those who started their journalistic careers
as independence activists and therefore were imprisoned at some
point or at least lived with the constant risk of imprisonment.
One such journalist noted with irony that his two and a half
year prison term in Indonesia was based on criminal defamation
charges under the Indonesian Penal Code for his participation in
student demonstrations following the Santa Cruz massacre.

Government reaction
--------------


5. (U) Government representatives, especially Prime Minister
Mari Alkatiri who has been pushing publicly for its immediate
promulgation, have defended the defamation law as necessary to
protect people's "good names", noting that journalists and
others should not be concerned about the law as long as they are
reporting the truth. However, many observers among media, civil
society and international organizations believe that the law is
primarily intended as a political tool. They note the complete
lack of public consultation by the Government in preparing the
law as well as the timing of introducing such a law in the year
before a potentially bitterly contested national election.


6. (U) The application of criminal defamation charges to date
appear to support this view. Although East Timor's own penal
code is not yet in effect, the defamation and subversion
provisions of the Indonesian Penal Code have been used on
several occasions to arrest private citizens for criticism of
government officials or statements. To date, these have been
few in number and resulted in only short detentions followed by
dismissals. However, this week, the Prime Minister declared
that he is charging the head of the Democratic Party (PD) with
criminal defamation for statements made last week accusing the
Prime Minister of corruption.

Journalists concerned
--------------


7. (U) Although the Government's plans to criminalize defamation
have been common knowledge for quite some time, the media
community has until now done little as far as promoting public
discussion or mobilizing opposition. Some Embassy sources note
with regret that prior to the Council of Ministers'
announcement, the media community did not take the possibility
of criminalization very seriously. Moreover, the East Timorese
news media lack a sense of community and have to date been
unable to mobilize effectively around issues of common interest.


8. (U) However, it appears that the Council of Ministers'
announcement has served as something of a catalyst for East
Timor's journalistic community and a significant number are now
concentrating their energies on campaigning against the
promulgation of the law. On December 20, the Timor Leste
Journalist Association (TLJA),with support from the Timor Leste
Media Development Center (TLMDC) and the Southeast Asian Press
Association (SEAPA),held a workshop to address the issue. The
workshop was reportedly attended by almost all of TLJA's members
as well as most members of the competing press association,
Syndicato. Many attendees stayed only for the high-profile
speeches, by Father Martino Gusmao representing civil society's
opposition to the law and Minister of the Presidency of the
Council of Ministers Antoninho Bianco, representing the
Government's position. However, a core group of about 15
journalists remained behind to form a working group to campaign
against the criminalization of defamation. The journalist
working group plans a press conference this coming Tuesday,
January 24 at which they will issue a joint declaration and will
request a meeting with President Gusmao on his return from his
current travel in the U.S.


9. (U) In addition, all four of East Timor's daily papers have
published articles either directly criticizing the law or
reporting on criticism of the law from opposition Members of
Parliament and civil society organizations. A weekly paper, Vox
Populi, has dedicated its last two issues to the criminalization
of defamation. Despite this apparent unity, there are still
some cracks apparent in the media community. For example, Suara
Timor Lorosae (STL),East Timor's oldest paper which takes a
consistent anti-Government line, has had a long-standing split
with TLJA and so far has not joined the working group to oppose
the law, despite STL's own opposition to it.

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President could veto
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10. (SBU) During a January 16 meeting in anticipation of his
trip to the United States, President Gusmao mentioned to
Ambassador Rees that he was now considering whether to sign or
veto the penal code. Ambassador Rees responded by expressing
serious concerns about the criminal defamation provisions.
President Gusmao responded that he had similar concerns, but
that Prime Minister Alkatiri had insisted that criminal
defamation laws do not violate the principle of free speech,
pointing to the fact that many democratic countries have such
laws. Ambassador Rees responded that if President Gusmao were
to veto the bill on constitutional grounds, it would trigger a
constitutional review by the Court of Appeals, which is
currently dominated by international judges from Portugal and
might well uphold the law as constitutional. Ambassador added,
however, that if the President were to veto the law on policy
grounds, it would then be up to Parliament to decide by a simple
majority whether to accept or reject the offending provisions.
In this case it is conceivable, although not likely, that a
unified opposition plus a few independent-minded Fretilin
members could unite to uphold the veto, and in any event the
President would have made a powerful statement in favor of
freedom and democracy.


11. (SBU). In an earlier conversation with Emboff, the
President's Chief of Staff Agio Pereira relayed that Gusmao is
looking closely at the law with special attention to the
defamation issue. Pereira said that the President may consider
vetoing the law on either constitutional or political grounds.
According to Pereira, the Office of the President is relying on
a number of legal sources for analysis of the law. In
particular he reported that it has been forwarded to a trusted
Portuguese constitutional lawyer for review. In addition, he
said, they will solicit the advice of two UNOTIL (UN Office for
East Timor) legal advisors due to begin working in the Office of
the President at the end of January.

Draft talking points
--------------


12. (U) Unless directed otherwise, Emboffs will use the
following talking points in private conversations if asked
whether the United States has a position on criminal defamation.
These might also form the basis of statements to members of the
Government and/or Parliament after the President makes his
decision about whether to sign or veto the law, and/or for a
public statement if that were to become appropriate at some
future stage in the process. These points might also provide
useful background for a proposed January 24 meeting between
Secretary Rice and President Gusmao. (Note: Foreign Minister

SIPDIS
Jose Ramos-Horta, an appointed member of the Prime Minister's
cabinet who has often been an advocate within the cabinet for
forward-looking policies, would also be present at the proposed
meeting.) Suggested talking points follow:

-- The USG is seriously concerned that the penal code recently
passed by the Council of Ministers and pending promulgation
criminalizes defamation.

-- We believe criminalizing defamation would be a step backwards
in the development of democracy in East Timor because it is
likely to have a chilling effect on freedom of speech and public
discourse.

-- This law could have a detrimental effect on legitimate
journalistic endeavor and the existence of a free press. A free
press is a central pillar of any functioning democracy - this
law would undermine this fundamental democratic freedom and
risks stunting the development of a free press at a critical
time in its history.

-- We are very concerned that the law as written particularly
targets the freedom of the press to scrutinize, report on, and
criticize public figures. Its most severe penalties are
reserved for speech that concerns public figures, the very
people about whom the public needs to be most informed.

-- Last November it was our great pleasure to share the good
news that East Timor had been selected as eligible for a
Millennium Challenge Account (MCA) compact. One of the key
criteria for this selection was East Timor's demonstration of a
commitment to good governance. The defamation law, on the other

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hand, goes against the principles of democratic participation
and transparency that are the core of good governance.

-- We hope that these provisions will be deleted from the penal
code before it is promulgated. We encourage the Government of
East Timor (GOET) to enter into constructive dialogue with the
news media regarding the role of a free and responsible press in
East Timor's democracy.

-- East Timor has made great strides as a democracy in a very
short time. It would be very disappointing indeed if its
leaders were now to choose to take such a backward step.Adopting
this law would send the message both to the people of East
Timor and to the international community that East Timor's
commitment to democracy and freedom has weakened. We hope that
instead the Government will send the message that this
commitment will be redoubled as the country moves towards
national elections next year.
WHARTON