LH asks National Parliament to Remove Criminalization of Defamation from TL Penal Code

 Link to this post in Tetum 

On 3 June, La'o Hamutuk made a submission to Committee A of the National Parliament on the bill amending the Penal Code, asking Parliament to clearly separate two matters of different natures: protecting victims of sexual violence and criminalizing defamation.

La'o Hamutuk supports measures to criminalize sexual harassment, non-consensual sexual acts and incest. Victims of sexual violence need strong protection, access to justice, dignity and a safe, sensitive and confidential justice system.

However, La'o Hamutuk rejects the proposal to criminalize defamation in the Penal Code. La'o Hamutuk does not advocate falsehood, offense or false imputation. Defamation can cause real harm to individuals, families and communities. But prison is not a fair, effective and proportionate response. Appropriate mechanisms are the right of reply, rectification, mediation, civil reparation, use of mechanisms in the Press Council, media ethics, digital literacy and independent fact checking.

La'o Hamutuk recognizes that freedom of expression is not an absolute right, and that the State has a duty to protect honor, good name and reputation. However, in a democratic state, any restriction on freedom of expression must be necessary, proportionate and the least restrictive measure. When there is a right of reply, rectification, mediation, civil reparation and Press Council mechanisms, a prison sentence for defamation becomes the most severe and dangerous response.

Criminalizing defamation with prison can create an environment of fear, self-censorship- avoidance of speaking about sensitive subjects and intimidation. Journalists may feel pressure not to investigate public matters. Whistleblowers may be afraid to speak up. Academics, activists, victims and citizens may avoid expressing their views. The affected community may feel intimidated when raising concerns about corruption, abuse of power, public contracts, natural resources, oil and gas, mining, environment, infrastructure, water, electricity, health and education.

Although the bill might provide for truth, good faith or public interest safeguards, these safeguards normally lapse once criminal proceedings have commenced. The intimidating effect comes immediately when the journalist, whistleblower or citizen is subjected to complaints, investigations, attorney fees, social stigma and the threat of imprisonment. Therefore, the main problem is not just the final judgment, but the criminal proceedings themselves.

In a sector involving public resources, large contracts, the environment and community impact, the freedom to ask questions and publish independent analysis is essential to good governance. This is not to impede development, but to ensure transparency, accountability and public trust. Criminal law must not be used as an instrument to limit the voice of affected peoples or reduce democratic control over decisions involving the public interest.

Timor-Leste's historical memory teaches us to be wary of any law that limits freedom of expression and public debate. A strong democracy requires an independent press, protected whistleblowers, and citizens who are free to voice concerns without intimidation.

In 2020, a similar proposal to criminalize defamation by the Ministry of Justice was met with strong resistance from the public, civil society, journalists and human rights defenders. At that time, La'o Hamutuk submitted a submission and an open letter to the relevant authorities to reject the proposal. The government suspended the process in August 2020, but the proposal was not permanently cancelled.

Now, the National Parliament is again considering the proposal to criminalize defamation, and La'o Hamutuk again asks Committee A and Parliament to learn from the past. Parliament must ensure substantive, inclusive and transparent national public consultation before the final vote.

La'o Hamutuk respects the Parliament's constitutional power to enact laws. Therefore, these recommendations are presented as a civil society contribution to help the legislative process be more transparent, inclusive, proportionate and consistent with human rights compatible.
La’o Hamutuk calls on Committee A and the National Parliament to:

1. Remove articles 187-A to 187-H from the Penal Code Amendment Bill, especially the provisions that criminalize defamation, insult, offense to the memory of the deceased - offense to the dignity and reputation of the deceased and offense to the collective entity.
2. Continue to discuss and approve measures to strengthen protections for victims of sexual violence, including sexual harassment, sexual harassment, non-consensual sexual acts and incest.
3. Conduct national public consultations in Dili and the municipalities, with clear and accessible legal documents in Tetum, and involve journalists, the Press Council, women and children's organizations, youth, people with disabilities, PDHJ, Public Prosecutor, PNTL, Public Defender, Church, academics, local authorities, survivors of sexual violence, rural communities and civil society organizations.
4. Strengthen civil and institutional mechanisms to protect reputation, through the right of reply, rectification, mediation, civil reparation, Press Council, media ethics, digital literacy and independent fact checking.
5. Prioritize adoption of laws protecting whistleblowers and sources of information in the public interest, so that people who disclose information about corruption, abuse of power, violence or environmental risk are not intimidated or retaliated against.

La'o Hamutuk reaffirms that the protection of reputation is very important. However, the proposal to criminalize defamation with a prison sentence continues to present a significant risk to freedom of expression. Imprisonment could be used as a tool to intimidate journalists, whistleblowers and citizens who make well-founded and public interest criticism. Therefore, Parliament should separate the matter of sexual violence from the matter of defamation.

A prison sentence is not an appropriate response. Criminal law must not be used to limit legitimate criticism, whistleblowing, independent journalism, academic research, public participation or the voices of the affected community.

Protect the victim. Protect reputation. But don't send critics to jail.

Criticism is not a crime. Whistleblowing in good faith is not a crime. Public participation is not a crime.

More information, articles and submissions are on La'o Hamutuk's website.