In Timor-Leste, hurt feelings could land journalists in jail

Timor-Leste faces a testing period for press freedom in the lead-up to next year’s presidential and parliamentary elections, writes Mark Skulley.

The government of Timor-Leste said all the right things in marking World Press Freedom Day on May 3.

It issued a statement noting that press freedom was guaranteed by the country’s Constitution, particularly sections 40 and 41. “After so many years of media constraint under colonization and occupation those responsible for drafting the constitution understood the importance of press freedom.”

The government’s spokesman, Minister of State, Agio Pereira, added: “The power of media was a key driver in advancing our struggle for self-determination. On World Press Freedom Day we recognise the importance of press freedom to our Democracy.”

However, a different story is developing on the ground for local journalists under a Media Law that was passed in late November 2014, and in a separate case involving the Prime Minister, Dr Rui Maria de Araújo, which could see two journalists jailed for up to three years.

The Media Law created a five-member Press Council which was constituted in March this year. It comprises two representatives of journalists, two citizens appointed by the National Parliament and one representative of media bodies. Its responsibilities include promoting freedom of express and media independence, while helping develop the skills of journalists.

International media groups are concerned the Media Law gives the Press Council the power to fine journalists for “undesirable” reports, and requires all journalists and media outlets to be accredited by the state.

Sydney barrister Jim Nolan has written a report for the International Federation of Journalists (Asia Pacific), which draws attention to Article 20 of the Media Law. This sets out the duties of journalists, which include having to: “Always observe the personal rights of citizens, including protecting their honour, dignity and privacy, except when such observance conflicts in an obvious and unequivocal way with the public interest.”

Nolan argues the clause means each media report that contains a slight to “honour, dignity and privacy”, will need to clear a very high bar. “A report which is written in good faith and that raises an arguable and credible issues of public interest will not be defensible in this formulation.”

“A legal test which requires the ‘public interest’ to be demonstrated as ‘obvious and unequivocal” would no doubt be welcomed by those in authority. Unequivocal means ‘leaving no doubt’. This sets a legal burden for journalists engaged in public interest journalism which is completely antithetical to the idea of press freedom.”

Furthermore, Nolan’s report says that violations of journalistic duties may be be treated as criminal offences, with breaches punishable by fines of $500 to $1500, which are hefty in such a poor country where the media scene is lively but reliant on government subsidies. “It must also be recalled that the other severe punishment includes de-registration of a journalist or a publication. In other words, career-ending or business-ending consequences may follow.”

Nolan’s report concludes by noting that those appointed to the Press Council are good people who will have press freedom as their paramount concern. “That said, they must do their work in an institutional framework which is potentially quite hostile to a free and robust press. If the new Press Council is to do its job, it will operate as [a] bulwark against the legal setting in which is has been placed.”

The legal case involving the Prime Minister is different, involving action brought by the Prosecutor General under section 285 of the Penal Code. But it, too, has raised the concerns of international media groups, including the IFJ.

Last November, the Timor Post published an article about an IT tender conducted when the Prime Minister was working as an adviser to the Minister For Finance. De Araújo argues that an Indonesian company was recommended for the tender, but the Council of Ministers awarded it to a different company. He says the Post report named the wrong company as having been recommended.

The Post carried a correction the next day, in the type of prompt response required under the Media Law. But de Araújo was not satisfied and complained to the Prosecutor General that he had been subjected to a publicly disseminated false accusation. The relevant section of the Penal Code deals with what English speakers might call “slanderous denunciation”, but the PM prefers the Portuguese term, “Denuncia Caluniosa”.

Criminal prosecutions have been brought against the author of the article, journalist Raimundos Oki, and a former editor of the Timor Post, Laurenco Martins.

In a joint letter in April, the Committee to Protect Journalists, Freedom House, the International Federation of Journalists and Southeast Asian Journalist Unions argued the case “threatens to significantly undermine press freedom in Timor-Leste by engendering a culture of fear and intimidation among journalists who report on issues of national import.”

These groups argue the case amounts to “criminal defamation proceedings” which have been declining in neighbouring Indonesia, after a lengthy struggle by journalists in that country. The last such trial in Indonesia was an acquittal in 2010 over a complaint by the outgoing police commander of South Sulawesi.

In a letter responding to the international media groups, the Timor Prime Minister listed the incorrect information published in the article and argued that he presented “the facts” to the prosecutor’s office as a “common Timorese citizen” rather than as the PM.

“That is what I did, as not to do so may be interpreted as having acquiesced to the allegations,” he said in the letter.

“With all due respect to the press freedom and freedom of expression, are these ‘a factual error on a government tendering process’? Can [a] journalist write, and newspaper publish these types of reports just because of press freedom and freedom of expression?”

“Please rest assured that as a common Timorese citizen, who endured harassment during 24 years of Indonesian occupation, acquiesced by all major western powers, including some of the world free press advocates, I will not trade press freedom and freedom of expression with ‘press responsibility’ and ‘irresponsible expression of freedom’.”

Prime Minister of Timor-Leste Rui Maria de Araújo talking to journalists. Photo: Mark Skulley

Prime Minister of Timor-Leste Rui Maria de Araújo talking to journalists. Photo: Mark Skulley

Now, the Prime Minister is entitled to criticise the overall coverage of Timor under Indonesian occupation, including that of Australia. However, many international journalists strove to provide coverage, including the Balibo Five and a sixth journalist executed during the 1975 Indonesian invasion, Roger East.

Another Australian journalist, Jill Jolliffe, has followed Timor closely for 40 years. In 1990, Robert Domm was smuggled into the jungle to record a world-first interview for the ABC with a then little-known guerrilla commander and resistance leader, Xanana Gusmao.

Furthermore, it is disingenuous for the Prime Minister to argue that he complained to the prosecutor as a “common Timorese citizen” when he is, after all, the PM.

In person, Prime Minister de Araújo is a serious man who trained as a doctor in Indonesia before completing post-graduate public health studies in New Zealand. He is seen as more of a technocrat or administrator than as a retail politician.

The PM chuckled softly when I asked him about the prosecutions, towards the end of a lengthy one-on-one interview in May, which mostly dealt with the disputed maritime boundaries with Australia and economic matters.

He argued that the prosecutions were not based on criminal defamation, as alleged by critics.

“What I did was, as somebody affected by a publicly disseminated accusation, is to present the facts to the prosecutor. These are the facts because according to our law, the prosecutor-general has the authority to decide either or not to take this case forward.

“What happened was I made a press conference, I said these facts are not correct. They published that. And they said that was the correction, an act of exercising my right of reply … There was no apology at all. But they will insist that one piece of notification that they published in the paper was an apology.”

Clearly, the incident still rankles. But does factual error, which was corrected, justify the risk of up to three years’ in jail? It should be noted that many observers strongly defend Oki’s overall record as a journalist.

Timor-Leste won the admiration of the world with its brave struggle for independence. Hopefully, the government will recognise that a free press is a cornerstone of their hard-won democracy.

Mark Skulley is a freelance journalist, after many years at The Australian Financial Review. He blogs at markskulley.wordpress.com. Related reading: MEAA just announced five Timor-Leste journalists have received the first Balibo scholarships.